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LIBRARY 


Farrand  's  Premium  Edition. 


THE 

PRACTICE 

OF  THE 


COURT  OF  KING'S  BENCH 

IN  PERSONAL  ACTIONS: 

WITH 

REFERENCES  TO  CASES  OF  PRACTICE 

IN  THE 

COURT  OF  COMMON  PLEAS. 

IN  TWO  VOLUMES. 

VOL.  IL 

first  american, 
:fuom  the  corrected  and  enlarged  londod  edition- 


By  WILLIAM  TIDD,  Es(^. 

OF  THE  inner  TEMPLE. 


PHILADELPHIA: 

PUBLISHED  BY  WILLIAM  P.  FARRAND. 
1807. 


TO  THE  PUBLIC. 

In  order  to  insure  correctness  the  publisher  of  this  book  has 
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PRINTED  BY  TRY  AND  KAMMEREU, 
Printers  of  W.  P.  Farrand's  premium  editione 


[     665     ] 
CHAPTER  XXXI. 

O/MAKiyiG  UP,  and  entering  the  Issue. 

A  N  issue  is  defined  to  be  a  single,  certain,  and 
material  point,  issuing  out  of  the  allegations  or 
pleadings  of  the  plaintiff  and  defendant  ^;  but  it  more 
commonly  signifies,  the  entry  of  the  allegations  or 
pleadings  themselves :  And  it  is  either  in  iaWj  upon 
a  demurrer,  or  in  fact,  which  is  triable  by  the  court, 
upon  nul  del  record,  or  by  a  jur}^,  upon  pleadings 
concluding  to  the  country. 

An  issue  in  fact  triable  by  a  jury,  is  either  such 
as  arises  in  the  course  of  an  adverse  suit,  or  is 
directed  by  some  court  of  law  or  equity,  or  framed 
under  the  authority  of  an  act  of  parliament,  for  the 
trial  of  a  disputed  question;  which  latter  is  called  a 
feigned  issue  ^  Two  or  more  issiles  are  sometimes 
joined  in  the  same  cause ;  as  where  the  defendant  de- 
murs and  pleads  to  different  counts  of  a  declaration, 
or  the  plaintiff  demurs  and  replies  to  different  pleas, 
or  where,  in  an  action  against  two  or  more  defen- 
dants, they  appear  by  different  attornies,  and  sever  in 
pleading. 

The 

« 

»  Co.  Lit.  1 26.  a.  «>  Append.  Chap.  XXXL  $  37 

Vol IL  B 


666  OF  MAKING  UF,  AND 

The  issue,  as  dependent  on  the  pleadings,  \%  gene- 
ral or  special.  In  every  action,  wherein  the  defendant 
pleads  the  general  issue,  or  demurs  generally  to  the 
declaration ;  on  a  plea  oiplene  administramt  by  an  ex- 
ecutor or  administrator ;  in  debt^  where  the  defendant 
pleads  a  special  non  est  factum^  comperuit  ad  diem  to  a 
bail-bond,  or  nul  tiel  record  to  an  action  on  a  j  udgment 
or  recognisance ;  in  coiienantj  where hisplea concludes 
to  the  country ;  and  in  trespass^  where  he  pleads  son 
assault  demesne^  liherwn  tenementum^  or  not  guilty  to 
a  new  assignment ;  the  issue  is  made  up,  on  treble- 
penny  stamped  paper,  by  theattornies;  who  likewise 
make  up  all  issues  and  demurrers  upon  writs  of  error, 
scire  facias,  ^ax^auditaquerda^  and  repleaders,  or  other 
matters  formerly  entered  of  record  '^.  In  all  other 
cases,  both  by  bill  and  original,  the  issue,  or  as  it  is 
commonly  termed,  the  paper-hook,  or  upon  an  issue 
in  law,  the  demurrer-hook,  is  made  up  by  the  clerk 
of  the  papers  '^;  who  charges  the  plaintiff's  attorney 
eight  pence  per  sheet  for  the  whole  book,  zn^-four 
pence  per  sheet  for  all  the  pleadings  subsequent  to 
the  declaration,  (which  the  plaintiff's  attorney  fur- 
nishes him  with  a  copy  of,)  besides  stamps. 

Formerly, 

--  R.  T.  12  W.  III.  a.      d  Say. Rep.  97.  but  see  2  Str.1266. 


ENTERING   THE  ISSUE.  667 

Formerly,  when  the  plaintiff  in  his  replication  con- 
cluded to  the  country,  or  demurred,  the  issue  could 
not  have  been  made  up,  till  a  four-day  rule  had  been 
given  and  expired,  to  rejoin,  or  join  in  demurrer;  but 
the  practice  in  that  respect  is  now  altered,  it  being  a 
rule,  that  in  all  special  pleadings,  where  the  plaintiff 
t^kes  issue  upon  the  defendant's  pleading,or  traverses 
the  same,  or  demurs,  so  as  the  defendant  is  not  let  in 
to  allege  any  new  matter,  the  plaintiff  may  make  up 
the  paper-book,  without  giving  a  rule  to  rejoin  "":  but 
otherwise  a  rule  must  be  given  for  that  purpose,  un- 
less the  defendant  be  bound,  by  a  judge's  order,  to 
rejoin  gratis. 

The  issue  contains  an  entry  or  transcript  of  the 
declaration,  and  other  subsequent  pleadings  *"; 
and  in  actions  by  bi//y  should  be  made  up  of  the 
term  in  which  it  is  joined^:  And  it  is  prefaced 
with  a  memorandum,  stating  the  exhibiting  of  the 
bill,  and  that  there  are  pledges  for  the  prosecu- 
tion of  it ''.  The  reason  for  a  memorandum  \s, 
that  proceedings  by  bill  were  formerly  considered 
as  the  bye-business  of  the  court  ':  And  it  varies 
in  four  cases:  first,  when  the  issue  is  of  the  same 
term  in  which  the  cause  of  action  accrued;  se- 
condly, when  it  is  of  a   term  subsequent  to  the 

cause 

e  R.T.  1  G.  II.  a.  ^  Append.  Chap.  XXXI.  $ 

f  Append.  Chap.  XXXI.  §  J,  &c. 

1,  Sec.  i  Oilb.  C.P.  47. 
K  3  East,  204. 


I 


668  or  MAKING  UP,  AND 

cause  of  action,  but  of  the  same  term  with  the  decla- 
ration ;  thirdly,  when  it  is  of  a  term  subsequent  to 
the  declaration,  and  within  four  terms  after;  fourthly, 
when  it  is  more  than  four  terms  after  the  declaration. 
In  the  first  case,  the  memorandum  is  specialj^stating 
the  bill  to  have  been  exhibited  on  a  particular  day  in 
term,  after  the  cause  of  action  accrued :  In  the  se- 
cond case,  it  states  the  bill  to  have  been  exhibited  on 
the  first  day  of  the  term  in  which  the  declaration  was 
delivered :  In  the  third  and  fourth  cases,  it  pursues 
the  fact,  but  with  this  difference,  that  in  the  third  case, 
the  term  of  exhibiting  the  bill  is  referred  to  as  last 
past,  and  in  the  fourth,  as  in  a  certain  year  of  the 
king^s  reign. 

The  bill  or  declaration  then  follows ;  and  afterwards, 
if  the  plea  be  of  a  term  subsequent  to  the  declaration, 
the  issue  by  bill  contains  the  entry  of  an  imparlance  ^ ; 
which,  we  have  seen,  is  general  or  special.  Where  a 
special  imparlance  is  necessary,  to  enable  the  defen- 
dant to  plead  any  particular  plea,  it  must  be  entered 
in  the  issue ;  but  otherwise  the  entry  of  a  general  im- 
parlance is  sufficient :  And  it  is  not  necessary  to  en- 
ter more  than  one  imparlance,  though  several  terms 
have  intervened  between  the  declaration  and  the 
plea  ^.  When  the  replication  is  of  a  term  subse- 
quent to  the  plea,  it  is  usual  for  the  clerk  of  the 

papers 

J  Append.  Chap.  XXXI.  §  2.        k  Id,  ibid. 


ENTERING   THE  ISSUE.  669 

papers  to  insert  continuances  in  the  paper-book ;  but 
this  does  not  seem  to  be  necessary  ^ 

The  pleadings  are  next  copied,  in  their  proper  or- 
der, beginning  each  with  a  new  line ;  and  under  them, 
the  clerk  of  the  papers  is  directed  to  write  the  names 
of  the  counsel  by  whom  they  are  signed,  as  well  on 
the  part  of  the  plaintiff,  as  of  the  defendant "".  For- 
merly, if  there  had  been  a  plea  in  abatement,  upon 
which  a  respondeas  ouster  was  awarded,  and  after- 
wards the  defendant  had  pleaded  in  chief,  it  was  ne- 
cessary to  enter  the  plea  in  abatement,  and  judgment 
of  respondeas  ouster,  in  making  up  the  issue,  as  well 
as  the  plea  in  chief";  and  where  they  were  entered 
in  the  plea-roll,  but  omitted  in  the  record  of  Nisi 
PriuSj  the  court  on  that  ground  arrested  the  judg- 
ment, the  record  of  Nisi  Prius  not  appearing  to  be 
in  the  same  cause  ".  Afterwards  a  rule  was  made, 
that  for  the  future,  a  copy  of  the  plea  in  chief  only 
should  be  delivered  and  paid  for  p;  and  agrecably 
thcreto,  where  the  plea  in  abatement,  and  judgment 
of  respondeas  ouster^  were  omitted  in  the  plea-roll,  the 
court  held  rfie  omission  to  be  immaterial;  particu- 
larly, as  the  defendant  had  accepted  and  paid  for  the 
issue  '^. 

An  issue  in  fact  by  bill,  Avhen  triable  by  the 
country,  concludes  with  the   award  of  the  'venire 

facias, 

1  5  Co.  75.  447.  5   Mod.  399.    12   Mod. 

■n  R.  E.  18  Car.  II.  119.S.  C. 

"  7  Mod.  51.  1  Salk.  5.  p  7  Mod.  51.  1  Salk.  5. 

«  4  Ld.  Raym.  329.  Carth.  i  3  Bur.  1.682. 


670  OF  MAKING   UP,   AND 

facias^  or  process  to  bring  in  the  jury,  as  follows: 
"  Therefore  let  a  jury  thereupon  come^  before  our  lord 
'*  the  king  at  Westminster,  on  (the  return  of  the  writ, 
"  being  a  day  certain),  by  whom^  £sV.  and  ixiho  nei- 
"  ther^  %sc.  to  recognise ^  ^c.  because  as  'mell^  £s?c.  *"; 
"  the  same  day  is  given  to  the  parties  aforesaid, 
"  at  the  same  place  ""^  If  there  are  several  issues 
in  fact,  triable  by  the  country,  the  conclusion  is  as 
follows  "  Therefore  as  well  to  try  this  issue,  as  the 
*'  said  other  issue,  or  issues,  above  joined  between  the 
"  parties  aforesaid,  let  a  jury  thereupon  come,  £s?c*.'* 
Or  if  there  are  several  defendants,  who  pleads  sepa- 
rately, the  award  of  the  venire  facias  states  between 
whom  the  different  issues  are  joined,  thus:  "  There- 
^^  fore  as  well  as  to  try  this  issue,  as  the  said  other 
*'  issue,  or  issues,  above  joined  between  the  said  A.  B. 
*'  and  C.  D.  ^c.  let  a  jury  thereupon  come,  £?*^"," 

Where  there  are  several  defendants,  some  of 
whom  plead,  and  others  let  judgment  go  by  de- 
fault, the  venire  facias  is  awarded  specially,  as 
well  to  try  the  issues,  as  to  assess  the  damages 
against  the  latter  defendants.  In  this  case,  as  it 
is   a  rule  that  tlie  jury  who  try  the  issues,    shall 

assess 

"■  For   the    explanation    of  *  Apend.     Chap.     XXXI. 

these  et  cetera,  see  the  writ  of  §  1- 

■venire    facias,     fiost.      Chap.  ^  ld.%  S, 

XXXV.  ^Id.^7. 


ENTERING   THE   ISSUE.  671 

assess  the  whole  of  the  damages ' ,  there  is  an  en- 
try of  an  iinica  taxatio  as  follows:  "  And  because  it 
"  is  coni}e7iient  and  necessary  that  there  be  but  one 
"  taxation  of  damages  in  this  suitj  therefore  let  the 
'■^  gimng  of  judgment  in  this  behalf  against  the  said 
"  CD.  (the  defendant  who  let  judgment  go  by  de> 
"  fault)  be  stayed^  until  the  trial  and  determination  of 
"  the  said  issue.,  or  issues,  above  joined  between  the 
"  said  A.  JB.  and  the  said  E.  jp."  (the  other  defen- 
dants "). 

If  there  be  several  issues,  in  fact  and  in  law,  the 
award  of  the  'venire  is,  as  well  to  try  the  former,  as 
to  assess  the  damages  upon  the  latter;  absolutely ,  if 
the  issues  in  law  have  been  already  determined  in  fa- 
vour of  the  plaintiff,  or  othtrwist  conditionally,  in  case 
judgment  shall  be  thereupon  given  for  him".  In  these 
cases,  if  the  issues  in  law  are  first  determined,  and 
the  plaintiff  is  in  consequence  entitled  to  damages 
upon  part  of  the  declaration,  or  against  one  of  seve- 
ral defendants,  there  is  an  entry  of  an  unica  taxatio, 
to  postpone  the  assessment  of  such  damages,  until 
the  trial  of  the  issues  in  fact :  But  if  the  issues  in 
fact  are  first  tried,  an  unica  taxatio  is  unnecessary; 
for  in  such  case,  the  jury  who  try  the  issues  in  fact 
will  of  course  assess  the  damages. 

In 

V  II  Co.  5,  8cc.    w  Append.  Chap.  XXXT.  M-  "  ^d.  §  6. 


672  OF  MAKING  Vt,  AND 

In  actions  by  original^  the  issue  is  entitled  of  the 
same  term  as  the  declaration  y ;  and  begins  with  a 
copy  of  the  declaration,  without  a  inemorandum'^: 
And  it  is  not  necessary  to  enter  imparlances  %  if  the 
pleadings  are  of  a  subsequent  term  ^.This  however  is 
sometimes  done ;  and  imparlances  are  commonly  en- 
tered by  the  clerk  of  the  papers,  between  the  plea  and 
replication  '',  where  they  are  of  different  terms,  in 
making  up  the  issue  by  original,  as  well  as  by  bill. 
The  award  of  the  'venire  facias  by  original,  is  as  fol- 
lows: "  Therefore  it  is  commanded  to  the  sheriff ^  that 
"  he  cause  to  come  before  our  lord  the  king^  on  (a  gene- 
"  ral  return  day,)  wheresoever  he  shall  then  be  in  Eng- 
"  land,  twelve  J  ^c.  by  whom,  ^c.  and  who  neither, 
*'  l^c.  to  recognise,  ^c.  because  as  well,  £5?^/"  But 
where  the  sheriff  is  a  party,  or  interested  in  the  cause, 
the  venire  is  awarded  to  the  coroner^;  or  if  there  are 
two  sheriffs,  and  one  of  them  is  interested,  to  the 
other  *;  and  if  the  coroner,  as  well  as  the  sheriflp,  is  in- 
terested, th^venire  is  awarded  to  two  persons,  appoint- 
ed by  the  court,  called  elisors  K  Where  the  venire  is 

laid 

y  Imp.  K.  B.    541.    Or  it  =  Id.  §  3. 

may  be  entitled  of  the  term  d  2  Lil.  P.  R.  124.  Append, 

issue  is  joined,  as  in  actions  Chap.  XXXI.  §  16,  17. 

by  bill.   Id.  398.  e  Append.     Chap.    XXXI. 

^  Append.   Chap.    XXXI.  §  14,  15. 

§3.  f  3  East,  141.  Barnes,  465. 

^  Id.  ibid.  Append.   Chap.   XXI.  §   18. 

*>  Id.  §  4. 


ENTERING   THE   ISSUE.  673 

laid  in  a  county -palatine,  instead  of  the  common 
award  of  a  'venire  facias,  there  is  a  special  award  of 
a  mittimus  to  the  justices  there,  commanding  them 
to  issue  the  jury-process,  and  when  the  cause  is 
tried,  to  send  the  record  back  again,  to  the  court 
above  '^.  At  what  time  the  practice  originated,  of 
sending  records  by  mittimus  into  counties- palatine, 
is  not  quite  clear;  but  so  late  as  the  11  W.  III.  the 
court  expressly  said,  they  could  not  order  a  trial  in 
the  county- palatine  of  Lancaster,  and  therefore  they 
sent  the  record  to  be  tried  in  Yorkshire,  as  being  the 
next  county  ^. 

When  a  fair  and  impartial,  or  at  least  a  satis- 
factory trial  cannot  be  had,  in  the  county  where 
the  action  is  laid,  the  court  must  be  moved,  on 
an  affidavit  of  the  circumstances,  for  leave  to  enter 
a  suggestion  on  the  roll,  with  a  nient  dedire,  in  or- 
der to  have  the  trial  in  the  next  adjoining  county  ' : 
And  as  the  suggestion  in  such  case  is  not  travers- 
able, the  court  will  see  that  it  is  necessary,  before 
they  give  leave  to  enter  it  ^  The  cause  in  that  case 
must  be  tried  in  the  next  adjoining  county,  though 
it  be  a  county-palatine'.    And  by  the  statute   38 

Geo. 

g  Append.  Chap.  XXXI.  §  ^  3    Bur.    1333.    By    Ld. 

9,  10.  Mansjidd  and   the  court.   E. 

h  12  Mod.  313.  and  see  Say.  23  G.  III. 

Rep.  47.    1  T.  R  368.  1  7  T.  R.735.  1  T.  R.  363 

•  Append.  Chap.  XXXI.  §  contra. 
19. 

Vol.  XL  C 


674  OF  MAKING  UP,  AND 

Geo.  III.  c.  52.  §  1.  it  is  enacted,  that  "  in  every 
"  action,  whether  the  same  be  transitorj'^  or  local, 
*'  which  shall  be  prosecuted  or  depending  in  any  of 
*'  his  Majesty's  courts  of  record  at  Westminster,  if 
"  the  venue  in  such  action  be  laid  in  the  county  of 
*'  any  city  or  town  corporate  in  England,  the  court 
*'  in  which  such  action  shall  be  depending  may,  at 
"  the  prayer  and  instance  of  any  plaintiff  or  defendant, 
"  direct  the  issues  joined  in  such  action  to  be  tried 
*'  by  a  jury  of  the  county  next  adjoining  to  the 
"  county  of  such  city  or  town  corporate,  and  award 
''  proper  writs  of  venire  and  distringas  accordingly, 
"  if  the  court  shall  think  proper."  The  cities  of 
London  and  IVestminster,  Bristol  and  Chester,  and 
the  borough  of  Soiithwark,  are  excepted  out  of  this 
statute'".  When  the  action  is  laid  in  a  place  where 
the  king's  UTit  of  venire  does  not  run,  as  in  Wales " 
and  Berwick  upon  Tweed'',  &c.  it  is  awarded  to  the 
sheriff  of  the  next  English  county,  upon  a  sugges- 
tion that  the  issue  ought  to  be  tried  there.  In  Sir  Pe- 
ter Delme''s  case  p,  it  was  settled,  and  has  ever  since 
been  the  practice  of  the  court,  that  if  either  party 
would  suggest  any  special  matter,  about  awarding 
the  venire  out  of  the  common  course,  he  should 

give 

«n  §  10.  1036.  and  see  Append.  Chap, 

n  Append.  Chap.  XXXI.  §  XXXI.  §21. 

20.  PlO  Mod.  198 
o  2  Bur.  855.  2  Blac.  Rep. 


ENTERING    THE  ISSUE.  675 

give  a  copy  of  it  to  the  adverse  party,  and  allow 
him  a  reasonable  time  to  consider  it,  before  a  merit 
dedire  is  entered*^.  And  where  there  are  several 
plaintiffs  or  defendants  in  a  personal  action,  and  one 
of  them  dies  before  issue  joined,  his  death  should 
be  suggested,  in  making  up  the  issue ;  but  other- 
wise it  need  not  be  suggested,  till  the  judgment-roll 
is  made  up^ 

An  issue  in  fact^  triable  by  the  record,  may  con- 
elude  by  praying  an  inspection  of  it,  if  the  record  be 
of  the  same  court ';  or  whether  it  be  of  the  same,  or 
of  a  different  court,  the  issue  may  conclude  by  giv- 
ing the  party  pleading  a  day  to  produce  it '.  And  on 
an  issue  in  /^w,  the  demurrer-book  concludes  as 
follows:  "  But  because  the  court  of  our  lord  the  king 
"  now  here  is  notyet  admsed,  what  judgment,  to  ghe 
"  of  and  upon  the  premises^  a  day  is  given  to  the  par - 
"  ties  aforesaid y  before  our  said  lord  the  king  at 
"  Westminster,  (if  by  bill^  or  if  by  original  where- 
"  soever,  fee.)  on  (the  day  appointed  for  argument), 
"  to  hear  judgment  thereon,  for  that  the  court  of  our 
"  said  lord  the  king  now  here  is  not  yet  advised  tliere- 
"  of,  &c." 

The 

q  1  Str.  235.  Append.  Chap.  &:c.  35. 

XXXI.  §  11,  &c.  And  for  the  ^  Append.  Chap.  XXXI.  ^ 

nature  and  effect  of  a  nient  22.  24. 

dedire,  see  1  Str.  183.  t  Id.  §  23.  25. 

«•  1  Bur.  363.  and  see   Ap-  «» Id.  %  26. 
pend.    Chap.    XXXI.    §    11, 


676  07  MAKING  UP,  AND 

The  general  issue  or  paper-book  being  made  up, 
is  delivered  to  the  defendant's  attorney  or  agent;  and 
if  there  are  several  defendants,  who  appear  by  differ- 
ent attornies,  a  copy  should  be  delivered  to  each  of 
them.  In  the  margin  of  the  paper- book,  a  condition- 
al rule  is  given  by  the  clerk  of  the  papers,  signify- 
ing, that  unless  the  defendant  receive  the  paper-book, 
and  return  it  by  a  particular  day,  to  be  enrolled,  a 
writ  of  inquiry  will  issue,  or  rule  for  judgment  be 
entered "".  If  a  paper-book  be  made  up  and  delivered 
in  term-time,  or  within  Jour  days  exclusive  after 
term,  with  a  rule  given  thereon,  by  the  clerk  of  the 
papers,  for  bringing  the  same  to  be  inrolled,  and 
the  defendant's  attorney  do  not,  within  four  days 
after  the  delivery  thereof,  bring  it  back,  and  join 
with  the  plaintiff  in  the  special  issue  or  demurrer, 
or  waive  his  special  plea,  and  give  the  general  issue, 
or  demurrer  to  any  special  issue  tendered,  judg- 
ment may  be  entered  and  signed,   as   if  no  plea 
had  been  pleaded.  And  the  clerk  of  the  papers  has 
no  discretion  to  give  a  rule   to  return  the  paper- 
book  in  less  than  four  days,  even  though  the  defen- 
dant be  under  terms  to  take  short  notice  of  trial  '^. 
But  where  a  plea  is  not  put  in  in  time,  so  that  a 
paper-book  may  be  made  up  and  delivered  in  term, 
or  within  four  days  after,  yet  if  it  be  made  up  and 
delivered   within  eight   days   after  the   term,    the 

defendant's 

V  Append.  Chap.  XXXI.  §         ^  Hale  v.  Smallwoodj  E.  35 
27.  G.III. 


ENTERING   THE  ISSUE.  677 

defendant's  attorney  is  obliged  to  take  it,  and  re- 
turn it  again  in  four  days  after  the  delivery,  or  judg- 
ment may  be  signed ''. 

If  a  plea  be  pleaded  in  term,  or  in  time  after  term, 
and  the  paper-book  be  not  made  up  and  delivered 
within  eight  days  exclusive  after  term,  if  it  be  an 
issue  to  be  tried  in  London  or  Middlesex^  or  a  de- 
murrer, the  other  pai  ty  is  not  bound  to  deliver  back 
the  book,  till  within  the  first  four  days  of  the  next 
term ;  but  if  it  be  an  issue  to  be  tried  at  the  assizes y 
the  defendant's  attorney  should  deliver  back  the  book 
within  four  days  after  the  delivery  thereof,  and  join 
in  the  special  issue,  or  give  the  general  issue,  and 
take  notice  of  trial;  or  else  the  plaintiff's  attorney 
may  sign  judgment  by  default,  as  if  the  defendant 
had  not  pleaded  '.  If  the  paper-book  be  of  an  issue 
in  fact^  the  four  days  for  keeping  it  are  reckoned 
exclusive;  if  of  a  demurrer,  or  issue  in  la'w,  they  are 
inclusi'ue  '■.  And  when  a  paper- book  is  not  returned 
within  the  four  days,  the  plaintiff's  attorney  may 
afterwards  refuse  to  accept  it,  and  sigii  judgment  ^; 
but  judgment  cannot  be  signed  after  the  paper- 
book  is  accepted,  though  it  be  not  returned  in  due 
time. 

Within 

"  R.  T.  1  G.  II.  (c).  a  Dou£?.  197.    4  T.  R.  195. 

y  Id.  ibid.  but  see  DoUg.  67.  1  T.  R.  16. 

^  R.  T.  1  Geo.  II.  (a);  but  scmb.  contra. 
see  Imp.  K.  B.  294. 


678  OF  MAKING  UP,   AND 

Within  the  time  limited  for  that  purpose,  the  de- 
fendant's attorney  or  agent  either  returns  the  paper- 
book,  or  not;  and  if  returned,  he  either  returns  it 
in  the  state  it  was  delivered  to  him;  or  if  he  has  not 
been  ruled  to  abide  by  his  plea,  he  may  waive  the 
special  pleadings,  and  give  the  general  issue  ^;  or  if 
the  similiter  to  the  replication  has  been  added  by  the 
plaintiff,  he  may  strike  it  out  and  demur  ^  In  the 
latter  case,  the  plaintiff  having  joined  in  demurrer,  a 
demurrer-book  is  made  up  by  the  clerk  of  the  pa- 
pers, and  delivered  over  to  the  defendant's  attor- 
ney; who  must  return  it  in  twenty-four  hours, 
unless  the  demurrer  be  special,  and  the  defendant 
has  not  been  ruled  to  abide  by  his  plea,  in  which 
case  he  may  still  waive  his  special  plea  and  demur- 
rer, and  give  the  general  issue.  If  the  paper-book 
be  returned  with  the  general  issue,  the  plaintiff's  at- 
torney makes  up  and  delivers  the  issue  afresh, .  in 
the  common  form. 

On  the  delivery  of  the  issue  ^,  or  returning 
the  paper-book  ^,  the  defendant  was  formerly 
obliged  to  pay  for  copies  of  the  pleadings,  ex- 
cept in  actions  by  a  pauper*^,  or  against  an  at- 
torney 

b2Salk.  515.  «»  R.  T.  12  W.  III.  7  Mod. 

«=  For  the  form  of  the  notice  51.   Say.  Rep.  19.   Wenhams. 

of  having  struck  out  the  re-  Tristram^  H.  21  G,  III. 

joinder,     &c.     see     Append.  «■  5  T.  R.  400. 

Chap.  XXXI.  §  28.  i  Id  509. 


ENTERING   THE  ISSUE.  679 

tomey^  or  prisoner^;  and  in  a  qui  tarn  action,  he 
paid  double '.  This  was  called  issue- money ;  on  non- 
payment of  which,  the  plaintiff  might  have  signed 
judgment  ^.  But  by  a  late  rule  of  court  ^,  no  judg- 
ment shall  be  signed  for  non-payment  of  issue-mo- 
ney; but  the  same  shall  remain  to  be  taxed,  as  part 
of  the  costs  in  the  cause :  Which  rule  is  construed 
to  extend,  not  only  to  general  issues,  but  also  to  all 
special  issues,  and  the  paper  and  demurrer-books 
made  up  therein '". 

By  accepting  the  issue,  or  returning  the  paper- 
book,  the  defendant's  attorney  admits  it  to  be  pro- 
perly made  up " :  And  therefore  if  there  be  any 
variance  therein  from  the  pleadings  delivered,  or 
other  irregularity  in  making  it  up,  the  defendant's 
attorney  or  agent,  instead  of  accepting  it,  should 
take  out  a  judge's  summons,  and  obtain  an  order 
for  setting  it  right,  as  he  cannot  otherwise  take  ad- 
vantage of  the  irregularity,  on  a  motion  in  arrest  of 
judgment,  or  for  a  new  trial. 

When  the  issue  is  accepted,  or  the  paper-book 
returned,  the  plaintiff  should  enter  it  on  record, 
and  proceed  to  argument,  if  an  issue  in  law,  or  to 

trial, 

g  Say.  Rep.  77.  R.  218. 

h  2  Wils.  11.  m  6  T.  R.  477.  R.  M.  36 

i  But  see  3  T.  R.  137.  G.  IIL  and  see  I  Bos.  &  Pul. 

k  Barnes,  263.  275.  2  Blac.  292. 

Rep.  1098.  "2  Str.   1131.   1266.   Say. 

»  R.  H.  35  Geo.  III.  6  T.  Rep.  154.  3  Bur.  1682. 


680  OF  MAKING  UP,  AND 

trial,  if  an  issue  in  fact:  And  if  he  neglect  to  do  so, 
the  defendant  may  compel  him,  by  obtaining  a  rule 
from  the  master ",  on  the  back  of  the  issue,  entering 
it  with  the  clerk  of  the  rules,  and  serving  a  copy 
on  the  plaintiff's  attorney.  But  the  defendant  cannot 
give  a  rule  to  reply,  and  enter  the  issue,  in  the  same 
term :  And  if  the  action  be  laid  in  London  or  Mid- 
dlesex^ the  defendant  ought  not  to  give  a  rule  for  the 
plaintiff  to  enter  his  issue,  the  same  term  it  is  join- 
ed, unless  notice  of  trial  has  been  given:  And  in  a 
country  cause,  the  plaintiff  is  no  ways  bound  to  en- 
ter his  issue,  the  same  term ''. 

The  plaintiff  being  ruled  to  enter  the  issue,  must 
enter  it,  if  in  London  or  Middlesex^  and  bring  the 
record  into  the  office,  within  four  days  after  notice 
of  the  rule:  If  in  (he  country,  before  the  continuance- 
day  of  that  term:  Otherwise,  a  non  pros  may  be 
signed,  and  the  defendant  shall  have  his  costs  '^  But 
a  judgment  of  non  pros  cannot  be  regularly  signed, 
after  the  issue  is  entered,  though  it  be  not  entered 
within  the  time  allowed  by  the  rule  '.  And  where  it 
appeared  by  affidavit,  that  the  plaintiff's  attorney  had 
mislaid  the  papers,  the  court  ordered  the  defendant's 
attorney  to  give  him  a  copy  of  the  issue,  the  better 
to  enable  him  to  enter  it '. 

In 

o   Append.   Chap.   XXXI.  Ann.  (c). 
§  29,  30.  r  1  T.  R.  16.  but  see  4  T. 

P  R.  M.  4  Ann.  (c).  R.  \95.semb.  contra. 
ii  Lil.  P.  R.  87.  R.  M.  4         si  Str,  414. 


ENTERING   THE   ISSUE.  681 

In  order  to  enter  the  issue,  a  roll  must  be  obtain- 
ed, of  the  term  it  is  joined,  from  the  person  ap- 
pointed to  dehver  out  the  rolls  of  the  court'^ ;  which 
is  called  the  issue-roW'^.  This  roll  begins  with  an 
entry  of  the  warrants  of  attorney  for  the  plaintiff  and 
defendant,  which  is  said  to  have  been  introduced  by 
JVright  Chief-Justice,  in  the  reign  of.  James  the 
Second'';  previous  to  which  time,  the  warrants  of 
attorney  were  entered  on  a  separate  roll  ".  The  de- 
claration and  subsequent  pleadings  are  then  entered, 
as  in  the  issue  or  paper- book;  and  the  entry  of 
them  should  be  made  in  a  full  fair  hand,  with  a 
margin  of  an  inch  at  least,  and  a  convenient  distance 
at  the  top,  for  binding  up  the  same ;  and  at  the  bot^ 
torn,  that  the  writing  be  not  rubbed  out ''.  The 
issue  being  thus  entered  on  the  roll,  a  number  should 
be  got  for  it,  from  tlie  clerk  of  the  judgments,  if  it 
be  an  issue  of  the  same  term,  or  otherwise  from  the 
clerk  of  the  treasury;  and  the  roll  being  numbered, 
is  carried  to  and  docketed^  with  the  clerk  of  the 
judgments,  who  takes  for  the  entries,  after  which  it 
\%  filed  in  the  treasury  of  the  court. 

In 

t  R.  T.  11  8c  Geo.  II.  Salk.  88. 

"  Append.  Chap.  XXXI.  §  "  R.  H.  1657. 

3 1 ,  &c-  y  For  the  form  of  the  dock- 

V  R.  E.  4  Jac.  II.  et-paper,  see  Append.  Chap. 

w  1  Ld.  Raym.  509.  2  Ld.  XXXI.  §  36. 
Raym.  895.  Carth.    517.     1 

Vol.  II.  D 


682  OF  MAKING   UP,   AND 

In  practice,  it  is  not  usual  to  enter  the  issue  at 
full  length,  if  triable  by  the  countr}'^,  until  after  the 
trial,  unless  the  plaintiff  be  ruled  to  enter  it;  but 
only  to  make  an  incipitur  on  the  roll,  at  the  time  of 
passing  the  record  of  Nisi  Prius.  An  incipitur  how- 
ever is  necessary;  it  being  declared,  by  rule  of 
court  %  that  no  record  of  Nisi  Prius  shall  be  sealed, 
or  passed  at  the  Nisi  Prius  office,  before  the  issue 
is  fairly  entered  on  record,  or  an  incipitur  thereof; 
and  such  entry,  Avith  the  record  of  Nisi  Prius,  first 
brought  to  be  signed  by  the  secondary. 

Hitherto  we  have  spoken  only  of  issues  made 
up  and  entered  by  the  plaintiff:  But  in  actions 
of  replevin,  prohibition,  and  quare  impedit,  wherein 
the  defendant  is  considered  as  an  actor,  the  issue 
may  be  made  up  and  entered  by  the  defendant,  as 
well  as  the  plaintiff.  And  there  is  a  rule  of  court  % 
that  if  the  plaintiff  demur  in  law  to  the  defendant's 
plea,  rejoinder  or  rebutter,  and  the  defendant  join 
in  demurrer,  the  plaintiff's  attorney  shall  enter  the 
demurrer  of  record ;  and  in  default  thereof,  upon  a 
rule  given  by  the  secondary  **,  it  may  be  entered  of 
record  by  the  defendant's  attorney.  Accordingly, 
if  the  plaintiff  demur,  or  take  issue  on  the  defen- 
dant's plea,  rejoinder  or  rebutter,  and  the  defen- 
dant, in  case  of  a  demurrer,  join  therein,  and  the 

plaintifl" 

^  R.  M.  5  Ann.  reg.  I.  *>  Append.   Chap.    XXXI 

^  R.  E.  11  W.  III.  §30. 


s 
ENTERING    THE   ISSUE.  683 

plaintiff  will  not  make  up  the  book,  and  enter  it  on 
record,  the  defendant  may,  pursuant  to  this  rule, 
make  up  the  book,  and  deliver  it  to  the  plaintiff, 
who  has  a  right  to  enter  the  issue,  at  any  time  be- 
fore the  expiration  of  the  rule  given  by  the  secon- 
dary ;  which  rule  ought  to  be  served  on  the  plaintiff, 
at  the  same  time  the  book  is  delivered  to  him.  If 
the  plaintiff  do  not  enter  the  issue,  the  defendant 
may,  at  the  expiration  of  the  rule,  and  give  notice 
f)f  trial  by  proviso ". 

*■■  R.  E.  1 1  W.  III.  (a). 


CHAP, 


[     6S4     ] 


CHAPTER  XXXII. 

Of  ARGUING  Demurrers. 

X^  711  EN  the  issue  in  law,  upon  a  demurrer,  has 
been  entered  on  record  by  the  plaintiff,  or  in 
his  default  by  the  defendant,  either  party  may  move 
the  court  for  a  concilium^  and  proceed  to  argument  *. 
Where  there  are  several  issues,  in  law  and  in 
fact,  there  has  been  great  diversity  of  opinion  upon 
the  question,  which  of  them  should  be  first  tried 
or  determined.  According  to  the  earlier  authori- 
ties, if  a  man  demur  to  part,  and  take  issue  on 
other  part,  or  if  the  declaration  be  against  two  de- 
fendants, and  one  demur  and  the  other  take  issue, 
the  court  shall  determine  which  they  please  first''; 
though  it  was  reckoned  the  more  orderly  way  to 
give  judgment  first  on  the  demurrer".  In  another 
book  it  is  said,  that  the  issue  in  fact  ought  to  be 
first  tried;  because  if  this  be  found  for  the  plaintiff", 
the  jury  who  try  it  may  assess  conditional  damages, 
as  to  the  demurrer '^.  But  according  to  the  later 
cases,  where  there  are  several  issues,  in  law  and  in 

fact, 

^  R.  T.  1  Geo.  II.  (a).  c  Co.  Lit.  72.  a. 

f*  Co.   Lit.  72.  a.  Gilb.  C.        "^  Say.  Z)aw.  11 5. cites  Lutw- 
P.  57.  875. 


OF  ARGUING   DEMURRERS.  685 

fact,  the  determination  of  the  issue  in  law  may  be  ei- 
ther before  or  after  the  trial  of  the  other,  at  the  elec- 
tion of  the  plaintiff  ^  In  practice,  it  is  usual  and  ad- 
^'isable  to  determine  the  issue  in  law  first,  for  the  fol- 
lowing reasons;  first,  that  the  determination  of  an 
issue  in  law  is  generally  more  expeditious,  and  less 
expensive,  than  the  trial  of  an  issue  in  fact:  second- 
ly, that  if  the  issue  in  law  go  to  the  whole  cause  of 
action,  and  be  determined  against  the  plaintiff,  it  is 
conclusive,  and  there  is  no  occasion  afterwards  to  try 
the  issue  in  fact;  whereas,  if  the  issue  in  fact  be  first 
tried,  and  found  for  the  plaintiff,  he  must  still  pro- 
ceed to  the  determination  of  the  issue  in  law,  and 
if  that  be  found  against  him,  he  will  not  be  allowed 
his  costs  of  the  trial  of  the  issue  in  fact:  And 
lastly,  that  whether  the  demurrer  go  to  the  whole  or 
part  of  the  cause  of  action,  if  the  plaintiff  proceed  to 
argue  it  first,  and  the  court  are  of  opinion  against 
him,  he  may  amend  as  at  common  law;  but  after  the 
cause  has  been  carried  down  to  trial,  he  cannot  amend 
any  farther  than  is  allowable  by  the  statutes  of  amend- 
ments. 

The  concilium^  dies  concilii,  or  day  to  hear  the 
counsel  of  both  parties  \  was  formerly  moved  for, 
upon  reading  the  record  in  court  ^';  but  now  it  is 
a  motion  of  course,  which  only  requires  a  coun- 
sel's signature:   Still  however  the  record  is  taken 

to 

e  2  Lil.  p.  R.  85,  R.  E.  23        f  R.  E.  2  Jac.  II. 
Car.  LB.  R.  g /f/.  2  I,il.  P.  R.  421 


686  OF  ARGUING   DEMURRERS. 

to  the  clerk  of  the  papers,  who  marks  it  read^  and 
signs  the  initials  of  his  name  on  the  brief  or  motion- 
paper;  which  being  carried  to  the  clerk  of  the  rules, 
he  draws  up  the  rule  thereon,  which  is  a  four-day  rule, 
and  then  the  cause  is  entered  for  argument  with  the 
clerk  of  the  papers  ''.  It  is  not  necessary,  though 
usual,  for  the  plaintiff  to  serve  the  rule  for  the  conci- 
lium upon  a  demurrer,  or  to  give  notice  of  putting  it 
in  the  paper;  it  being  in  strictness  the  defendant's 
duty  to  search  '.  Signing  a  concilium  is  considered 
as  a  step  in  the  cause,  so  as  to  make  it  unnecessary 
ro  give  a  term's  notice  K 

Previous  to  the  day  appointed  for  argument, 
copies  of  the  demurrer- books  should  be  delivered 
by  the  plaintiff  or  his  attorney,  on  unstamped  paper, 
to  the  chief-justice  and  senior  judge,  and  by  the  de- 
fendant or  his  attorney,  to  the  two  other  judges  '';  in 
which  should  be  inserted  the  names  of  the  counsel 
who  signed  the  pleadings ' :  and  the  exceptions 
intended  to  be  insisted  upon  in  argument, 
should  be  marked  in  the  margin  "".  In  causes  en- 
tered for  argument  on  Tuesday,  the  books,  we 
have  seen,  are  to  be  delivered  to  the  chief-justice, 
and  the  rest  of  the  judges,  on  the  Saturday  pre- 
ceding; 

h  R.  T.  I  G.  II.  (a).  1  R.  E.  18  Car.  II. 

i  2  Str.  1242.  -ii  R.  E.  2  Jac.  II.  revived 

J  3  T.  R.  530.  by  R.  H.  38  G.  Ill 

k  R.  M.  17  Car.  I. 


OF  ARGUING   DEMURRERS.  687 

ceding;  and  in  those  entered  for  argument  on. Fri- 
day,  they  are  to  be  delivered  on  the  Tuesday  preced- 
ing ".  If  either  party  neglect  to  deliver  the  books, 
they  ought  to  be  delivered  by  the  other ;  and  the  par- 
ty neglecting  shall  not  be  heard,  until  he  have  paid 
for  them  °. 

The  judgment  for  the  plaintiff,  or  demurrer  to  a 
plea  or  replication  in  abatement,  is  not  final,  but  only 
a  respondeas  ouster '' :  In  other  cases,  it  is  interlocu- 
tory or  final,  according  to  the  nature  of  the  action:  If 
the  action  be  for  damages  in  assumpsit^  &:c.  it  is  in- 
terlocutory, and  should  be  signed,  on  treble-penny 
stamped  paper,  with  the  clerk  of  the  judgments,  af- 
ter which  the  damages  should  be  assessed,  on  a  writ 
of  inquiry  'J,  or  reference  to  the  master;  but  in  debt, 
&c.  for  a  sum  certain,  the  judgment  is  final,  except 
where  it  is  necessary  to  proceed  on  the  statute  8  &. 
9  W.  III.  c.  11.  \  8.  ■■;  and  there  being  no  neces- 
sity for  a  rule  for  judgment  %  the  plaintiff  may  imme- 
diately tax  his  costs,  and  take  out  execution. 

"  R.  T.  40  G.    III.  I   East,  of  inquiry,  after  judgment  ou 

131.  and  see  R.  E.  2  Jac.  II.  demurrer,  it  is  not  competent 

(a).  Ante.,  460.  to  the  defendant  to  controvert 

o  R.  M.  17  Car.  I:  any  thing  but  the  amount  of  the 

p  Gilb.   C.  P.   53^      1    Ld.  sum  in  demand.   IBos.  ScPul. 

Raym.  351.  Say.   Rep.  46.  2  3  68. 

Wils.  367.  Ante,  588,  9.  '  Ante.,  508,  9,  10. 

<i  On  the  execution  of  a  writ  ^  1  Sfr.  4?^. 

CHAP. 


[     688     ] 

CHAPTER  XXXIII. 

Of  the  Issue,  <^«</ Trial  by  the  Record. 

npHE  issue  we  are  now  treating  of,  arises  upon  a 
plea  or  replication  oinul  tiel  record.  The  plea  of 
nul  tiel  record  is  always  concluded  with  an  averment, 
and  prayer  of  judgment  si  actio ^  &c.  ^;  and  if  it  de- 
ny the  existence  of  a  record  of  the  same  court,  the 
replication  thereto  may  conclude  with  a  prayer  that 
it  he  viewed  and  inspected  by  the  court  ^ :  but  where 
the  record  is  of  another  court,  the  plaintiff  shall  have 
a  day  given  him  to  bring  it  in ". 

Where  a  judgment,  or  other  matter  of  record,  in 
the  same  court  is  pleaded,  and  the  plaintiff  replies  nul 
tiel  record^  the  replication  may  conclude  as  follows, 
*'  and  this  he  is  ready  to  verify^  Sec.  and  because  the 
"  court  of  our  lord  the  ki?ig  now  here  will  admse  them- 
*'  sehes^  upon  i?ispection  and  examination  of  the  record, 
"  by  the  said  (defendant)  abo'ue  cdleged,  a  day  is  given 
"  to  the  parties  aforesaid,  before  our  said  lord  the  king 
' '  at  Westminster,  until,  &c. '' : "  or,  instead  of  replying, 

the 

^  2  Wils.  114,  330,  31.' 
''Herne,2r8.2Lutw.  1514.         d  Dyer,   227,    8.    2    Lutw. 

Barnes,  336.  1514.  2  Salk.  566.  Carth.  517 

^  2  Salk.  566.  3  Blac.  Com.  1  Ld.  Raym.  550.  S.  C 


OF   THE  ISSUE,  &C.  '     689 

the  plaintiff  may  crave  oyer  of  the  record,  or  at  least 
a  note  in  writing  of  the  term  and  number-roll,  and 
if  it  be  not  given  him  in  convenient  time,  he  may  sign 
judgment.  This  practice  was  originally  confined  to 
pleas  in  abatement^;  but  was  afterwards  extended 
to  pleas  in  bar  ^'.  and  accordingly  it  is  now  settled, 
that  \\  herever  a  judgment  or  matter  of  record  in  the 
same  court  is  pleaded,  the  party  pleading  it  must,  on 
demand,  give  a  note  in  writing  of  the  term  and  num- 
ber-roll, whereon  such  judgment  or  matter  of  record 
is  entered  and  filed,  or  in  default  thereof,  the  plea  is 
not  to  be  received  '.  Where  the  record  is  of  another 
court,  the  plaintiff  may  either  conclude  his  replica- 
tion of  nul  tiel  record^  by  giving  the  defendant  a  day 
to  bring  it  in,  or  with  an  averment  and  prayer  of  the 
debt  and  damages '' :  In  the  former  case,  the  issue  is 
complete  upon  the  replication  ';  but  in  the  latter, 
there  ought  to  be  a  rejoinder,  that  there  is  such  a  re- 
cord J,  &c. 

This  issue  is  triable  by  the  record  itself,  if  it  be 
of  the  same  court;  or  by  the  tenor  of  the  record,  if 
it  be  of  a  different  court  ^.  Where  the  record  is 

of 

e  Keilw.   95,  6.  Carth.  453.  •  Cas.   Pr.    C.   P.    56.   Pr. 

5ir.   1  Ld.  Raym.    347.   550.  Ret^.  227,  8.  Barnes,  16  1.  335, 

2  Ld.  Raym.  1179.  6.  Com.  Rep.  533.  2  Bos.  8t 

fSStr.  823.  Pul.  302. 

E  R.  T.  5  8c  6  Geo.  II.  {b\  J  1  Ld.  Raym.  550. 

Ante,  529.  k  Eui.    aV.    Pri.  230.  GLlb= 

h  Barnes,  161.  2  Wils.  113.  Evid.  26.  2  Bur.  1031. 

Vol.  II.  E 


690  or    THE   ISSUE,   ANi) 

of  the  same  court,  and  the  plaintiff  avers  its  existence^ 
notice  is  given  to  the  defendant's  attorney,  that  he  will 
produce  it  on  a  particular  day ;  being  a  general  re- 
tuni-day,  or  day  certain,  according  to  the  nature  of 
the  proceedings :  And  if  he  be  not  then  ready,  it 
seems  that  he  may  continue  the  day  for  bringing  in 
the  record  '.  But  where  the  existence  of  the  record  is 
averred  by  the  defendant,  the  plaintiff's  attorney  gives 
him  a  four- day  rule  to  produce  it,  which  he  obtains 
from  the  master,  on  the  paper-book ;  and  having  en- 
tered it  with  the  clerk  of  the  rules,  serves  a  copy  on 
the  defendant's  attorne}'. 

On  the  day  appointed  for  producing  the  record, 
the  issue  being  previously  entered,  is  brought  into 
court;  and  proclamation  being  made  by  the  crier, 
for  producing  the  record,  it  is  or  is  not  produced. 
If  produced,  the  party  producing  it  is  entitled  to 
judgment,  that  he  hath  perfected  the  record;  but 
otherwise  the  judgment  is  given  for  the  adverse 
I)arty,  that  he  hath  failed  in  producing  it "".  If 
the  defendant  plead  in  abatement,  another  action 
depending  for  the  same  cause,  and  the  plaintiff 
afterwards  discontinue  such  action,  the  issue  on 
7iul  tiel  record  must  be  found  against  him ;  because 
the  plea  was  true  at  the  time  of  pleading  it:  but 
jf  a  recovery  be  pleaded  in  bar,  and  the  judgment 

afterwards 

i  Barnes,  85.  ™  3  Salk.  1 5 1 .  and  see  7  T.  R.  447.  {d). 


TRIAL   BY  THE  RECOilD.  691 

afterwards  reversed,  before  the  day  given  to  bring  in 
the  record,  there,  upon  mil  tiel  record,  the  issue 
must  be  found  for  the  plaintiff;  because  by  the  re- 
versal, the  record  is  avoided  ab  initio ". 

Where  the  record  is  of  a  different  court,  the  mode 
of  proceeding  for  bringing  in  the  tenor  of  it,  is  by 
certiorari;  which,  we  have  seen  °,  is  a  writ  issuing 
sometimes  out  of  Chancery^  and  sometimes  out  of 
the  King^s  Bench.  And  where  nul  tiel  record  is 
pleaded,  to  the  record  of  a  superior  court,  or  court 
of  equal  jurisdiction,  there  is  no  way  to  have  it,  but 
by  certiorari  and  mittimus  out  of  Chancer}'-'';  for 
one  court  is  not  bounded  by  the  other,  in  point  of 
jurisdiction,  nor  can  they  write  to  each  other  to  cer- 
tify their  records :  But  the  Chancery  may,  by  its 
original  constitution,  award  a  certiorari,  for  bringing 
up  the  tenor  of  the  record  of  a  superior  court,  and 
afterwards  send  it  by  mittimus  to  another;  and  the  cer- 
tifying such  tenor  does  not  hinder  the  court  where 
the  record  is,  from  proceeding  upon  it:  And  this  me- 
thod was  contrived,  to  communicate  evidence  of  the 
record  from  one  superior  court  to  another,  without 
the  actual  removal  of  the  record  itself'. 

If 

n  1  Lord  Raym.  274.  2  Ld.  p  2  Burr.  1034.  and  ^ee  Cro. 

Raym.    1014.     1    Salk.    :^29  Car.  297. 

S.  C.  '1  Gilb.    Exec.      145.      153. 

o  Ante,  329.  i69.  and  see  Gilb.  Evid.  1.1. 


692  OF  THE  ISSUE,  hc. 

If  a  recovery  in  an  inferior  court  be  declared  on,  or 
pleaded  in  a  superior  one,  and  denied,  the  certiorari 
may  be  issued  out  of  the  superior  court  %  as  well  as 
from  the  court  of  Chancery  '.  And  on  this  writ, 
where  the  superior  court  doth  not  send  for  the  record 
of  an  inferior  one,  to  see  whether  they  keep  within 
the  limits  of  their  jurisdiction,  but  merely,  onnultiel 
recordy  to  know  whether  there  be  such  a  record  or 
not,  it  is  sufficient  to  certify  the  tenor  of  the  record  ''; 
and  in  Chancery  they  seldom  certify  any  thing  more, 
for  that  court  does  not  in  general  send  for  the  record 
of  the  inferior  one,  to  bound  their  jurisdiction,  but  to 
send  it  to  other  courts  by  mittimus  '':  But  where  the 
record  is  to  be  proceeded  upon  in  a  superior  court, 
the  record  itself  must  be  returned  ''. 

On  a  replication  oinul  tiel  record  X.o  a  plea  in  abate- 
ment, the  judgment  for  the  plaintiff  is  not  final,  but 
only  a  respondeat  ouster;  for  failure  of  record  in  this 
case  is  not  peremptory  ".  In  other  cases,  the  judg- 
ment is  interlocutory  or  final,  as  upon  demurrer; 
and  if  it  be  final,  a  rule  for  judgment  must  be  given, 
which  expires  in  four  days  exclusive,  but  otherwise 
the  rule  for  judgment  is  not  given  till  the  return  of 
the  inquiry ''. 

'  Cro.  Eliz.  821.  V  2  Atk.  317.  Jnte,  334,  5. 

«Gilb.  Exec.   148,  9.    170.  ^Carth.  517.   1  Ld.  Raym. 

^  Id.      143.    Dyer,    187.     3  550.    .^«/f,  5  88,  9.  687. 

Salk.   296.    2  Atk.   317,    18.  ^  Imp.  K.  B.  290.   Barnes, 

"  Gilb.  Exec.  145.  264. 

CHAP-- 


[     693     J 


CHAPTER  XXXIV. 


Of  Proceedings  upon  an  Issue,  triable  by  the 
Country. 

"PREVIOUS  to  the  sitting  or  assizes,  at  which 
the  cause  is  intended  to  be  tried,  the  plaintiff 
should  give  due  notice  of  trial ;  and  if  he  proceed  to 
trial,  without  giving  such  notice,  the  verdict  may  be 
set  aside  for  irregularity.  Every  notice  of  trial  ought 
to  be  in  writing  ';  and  given  to  the  defendant,  if  he 
appear  in  person,  or  odierwise  to  his  attorney  or 
agent  in  town,  if  his  place  of  abode  be  known  ;  but 
if  it  be  unknown,  the  notice  may  be  given  to  the  de- 
fendant himself:  And  where  the  defendant  is  a 
prisoner,  notice  of  trial  may  be  given  to  the  turnkey  ", 
Upon  the  delivery  of  a  paper-book,  wherein 
issue  is  joined,  and  notice  of  trial  given,  (as  it 
may  be,)  on  the  back  of  the  book,  if  the  special 
pleadings  be  afterwards  waived,  and  the  general 
issue  given,  the  notice  which  was  given  for  the 
trial  of  the  special  issue,  shall  serve  for  notice  of 
trial  upon  the  general  issue  ^.  And  so  where  the 
plaintiff,    upon    any    pleading    of    the    defendant, 

tenders 

a  R.  M.  4  Ann.  (c),  c  i  Str.  248.  Antc^  319. 

«»  Say.  Rep.  13?  d  R.  H.  8  Geo.  I.  (o). 


694  or  NOTICE  of  irial,  &c. 

tenders  an  issue,  and  the  paper-book  is  made  up  and 
delivered  with  notice  of  trial,  and  the  defendant 
strikes  out  the  similiter,  and  returns  the  book  with 
a  demurrer,  if  judgment  be  given  thereon  for  the 
plaintiff,  and  a  writ  of  inquiry  be  necessary  to  ascer- 
tain the  damages,  the  same  notice  that  was  given  for 
the  trial  of  the  issue,  shall  serve  for  executing  the 
writ  of  inquiry  ""t  but  then,  the  plaintiff  ought  to 
give  notice  of  the  hour  and  place  of  executing  it  ^. 

Notice  of  trial  may  be,  and  is  usually  given  on  the 
back  of  the  issue  or  paper- book;  or  it  may  be  given 
on  a  separate  paper  ^.  In  the  former  case,  it  need  not 
be  so  particular  as  in  the  latter:  and  therefore,  where 
the  issue  was  indorsed  as  follows,  "  Take  notice  of 
trial  at  the  next  assizes,"  this  was  held  to  be  a  suf- 
ficient notice,  without  any  mention  of  the  date, 
county,  or  attorney's  name;  though  it  would  have 
been  otherwise,  if  given  on  a  separate  paper  ^.  Where 
there  are  several  defendants,  and  one  of  them  pleads, 
and  the  other  lets  judgment  go  by  default,  the  notice 
should  express  that  the  issue  joined  with  the  former 
will  be  tried,  and  that  the  jury  will  at  the  same  time 
assess  the  damages  against  the  latter '. 

If 

«■  Same    rule,     jlnte,,    520.         ^  2  Str.  1237. 

i  Idem  (a).  i  Append.  Chap.  XXXIV. 

g  Append.  Chap.  XXXIV.     §  4. 


or   NOTICE  OF   TRIAL,   &C.  695 

If  the  venue  be  laid  in  London  or  Middlesex,  and 
die  defendant  live  within  forty  compuied  ^  miles  of 
London,  there  must  be  eig/it  days  notice  of  trial,  ex- 
clusive of  the  day  it  is  given,  but  inclusive  of  that 
on  which  the  trial  is  to  be  had;  and  if  the  defen- 
dant live  above  forty  computed  miles  from  London, 
then  fourteen  days  notice  must  be  given  ^.  In  country- 
causes,  eight  days  notice  of  trial  seems  to  have  been 
formerly  sufficient;  but  now,  by  statute  14  Geo.  IL 
c.  17.  §  4.  "  where  the  defendant  resides  above  for- 
"  ty  miles  from  town,  no  cause  shall  be  tried  at  Nisi 
"  FriiiSy  either  at  the  assizes  or  sittings  in  I^ondon 
*'  or  JVestminster,  unless  notice  of  trial  in  writing  has 
*'  been  given,  at  least  ten  days  before  such  intended 
"trial:'*  and  hence  ?(?;/ days  notice  of  trial  is  re- 
quired, in  all  cases,  at  the  assizes.  But  as  this  statute 
has  no  negative  words,  it  is  still  necessary  to  give 
fourteen  days  notice  of  trial,  for  the  sittings  in  London 
or  Westminster^  where  the  defendant  lives  above  for- 
ty computed  miles  from  London.  And  where  a  de- 
fendant, residing  in  town  at  the  issuing  of  the 
writ,  changes  his  residence  permanently  to  the 
country,  at  the  distance  of  above  forty  miles 
from  town,  before  the  delivery  of  the  issue,  he  is 
entitled  to  fourteen  days  notice  of  trial '.  If  there 
be  several  defendants,   and    one   of   them    reside 

within 

)  2  Str.  954.  1216.  »  1  East,  688. 

k  R.  M.  4  Ann.  fey 


696  01-    NOTICE  OF   TRIAL,  &C. 

within  forty  miles  of  London,  so  long  a  notice  is  said 
not  to  be  necessary  '".  The  venue  was  laid  in  Lon- 
don, and  the  defendant  residing  m  India,  a  verdict  for 
the  plaintiff  was  set  aside,  because  only  eight  days 
notice  of  trial  had  been  given  '. 

Upon  an  old  issue,  or  in  other  words,  where  there 
have  been  no  proceedings  for  four  terms  exclusive 
after  issue  joined,  a  term's  notice  is  requisite  °;  which 
notice  must  be  given  before  the  essoign-day  ot  the 
fifth,  or  other  subsequent  term  ^ :  And  a  judge's  sum- 
mons, if  no  order  has  been  made  upon  it,  is  not  a 
proceeding  within  the  meaning  of  this  rule ;  nor  the 
suing  out  of  a  'uenire  facias  or  distringas,  in  the  va- 
cation of  the  fourth  term,  though  it  be  tested  and  en- 
tered as  of  that  term  "^ :  But  a  notice  of  trial,  though 
countermanded,  or  notice  that  the  plaintiff  will  pro- 
ceed in  the  cause,  which  has  not  been  acted  under, 
is  such  a  proceeding,  as  will  prevent  the  necessity  of 
giving  a  term's  notice  \  The  rule  requiring  a  term's 
notice  does  not  extend  to  a  motion  for  judgment  as  in 
case  of  a  nonsuit ' ;  and  being  confined  to  voluntary  de- 
lays, it  does  not  apply,  where  the  cause  has  been  stay- 
ed by  injunction  or  privilege  ,  or  where  there  has  been 
an  agreement  to  stay  proceedings  for  a  limited  time, 

to 

^  Per  Ashburst,  Just.  4  T.  Pi  Str.   211.   2   Str.    1164. 

R.  520.  q  2  Salk.  457.  650. 

■1  4  T.  R.  552.  r  1  Str.  531.  3  East,  1. 

o  2  Salk.      645.      650.      R.  s  5  T.  R.  634. 

M.4  Ann.  (r);  and   see  Ap-  ^  1  Sid.  92.  R.  M.  4  Ann. 

pend.  Chap.  XXXIV.  §  6,  (c).  Doug.  71. 


OF  NOTICE  OF  TRIAL,  &C.  697 

to  enable  the  defendant  to  pay  the  debt,  in  default 
of  which  the  plaintiff  is  to  be  at  liberty  to  proceed  ". 
Short  notice  of  trial,  in  country  causes,  must  be 
given  four  days  at  least  before  the  commission- day, 
one  exclusive  and  the  other  inclusive^:  In  town 
causes,  two  days  notice  seems  to  be  sufficient"'';  but 
it  is  usual  to  give  as  much  more,  as  the  time  will 
admit  of.  And  Sunday  is  to  be  accounted  a  day  in 
these  notices,  unless  it  be  the  day  on  which  the 
notice  is  given''. 

If  the  plaintiflp  be  not  ready  to  proceed  to  trial, 
pursuant  to  notice,  he  may  countermand  or  in  some 
cases  continue  it.  Notice  of  countermand,  like  notice 
of  trial,  ought  to  be  in  writing  ^^  and  may  be  given 
to  the  attorney  in  the  country,  as  well  as  the  agent 
in  town  ^  Before  the  statute  14  Geo.  II.  c.  17.  two 
days  notice  of  countermand  appears  to  have  been 
sufficient  in  all  cases,  unless  it  was  for  a  trial  at  the 
assizes,  and  the  countermand  was  given  to  the  agent 
in  town;  in  which  case  it  was  required  to  be  given, 
four  days  before  the  commission-day '.  But  now, 
by  that  statute,    ^  5.  the  countermand  of  notice 

of 

"  2  Bur.  650.  2  Blac.  Rep.        y  Id.  ibid. 
762.  784.  ^  2  Str.  1073. ;  and  see  Ap- 

y  R.  E.  30  Geo.  III.  3  T.     pend.  Chap.  XXXIV.  §  8. 
R.  660.  a  R.  M.  4  Ann.  (c).  2  S*-. 

«  Pr.  Reg.  390.  849.  1073. 

"  R.  M.  4  Ann.  (c). 
Vol.  \}.  F 


698  OF  NOTICE   OF   TRIAL,  &C. 

of  trial  at  the  assizes,  or  in  a  town-cause  where  the 
defendant  lives  above  forty  miles  from  London^ 
must  be  given  six  days  at  least  before  the  intended 
trial:  In  other  cases,  Hvo  days  notice  of  counter- 
mand  is  still  sufficient,  the  day  of  countermand  be- 
ing one,  exclusive  of  the  commission-day,  or  day  of 
sittings. 

If  the  plaintiff  give  notice  of  trial,  and  proceed  not 
accordingly,  he  cannot  in  general  take  the  cause 
down  to  trial  again,  without  new  notice,  to  be  given 
as  before,  unless  by  consent  or  rule  of  court ''.  But  if 
notice  of  trial  be  given  for  a  day  certain  in  London 
or  Middlesex.^  and  the  plaintiff  be  not  ready  to  pro- 
ceed, the  cause  may  be  tried  at  the  next  sitting,  upon 
giving  two  days  previous  notice,  one  inclusive  and 
the  other  exclusive ;  which  is  called  a  notice  of  trial 
by  continuance ".  So,  if  the  defendant  enter  a  ne  red- 
piatur,  and  by  that  means  hinder  the  plaintiff  from 
trying  his  cause  at  one  sitting,  the  plaintiff  may  pro- 
ceed to  trial  at  the  next,  upon  notice  given  before 
the  rising  of  the  court  at  the  first  sitting  ^.  But  the 
plaintiff  cannot  continue  his  notice  of  trial,  more 
than  once  in  a  term  ^  And  in  either  of  the  before- 
mentioned  cases,  if  the  cause  be  not  tried  at  ,such 

next 

b  R.  M.  1654.  §  18.  d  R.  M.  4   Ann.   2  Salk. 

c  Append.  Chap.  XXXIV.     653. 
§  7.  ^2  Su-.  1119. 


OF   NOTICE  OF   TRIAL,  &C.  699 

next  sitting,  notice  is  to  be  given  as  at  first,  unless 
it  be  made  a  remanet  ^,  and  then  new  notice  of  trial 
is  never  given,  for  the  defendant  is  bound  to  attend 
till  the  cause  be  tried  ^.  But  if  the  trial  be  put  off  by- 
rule  of  court,  there  must  be  a  fresh  notice  of  trial '' : 
and  even  when  the  plaintiff  gives  a  peremptory  un- 
dertaking, to  try  at  the  next  sittings  or  assizes,  there 
also  a  new  notice  of  trial  must  be  given ;  because 
notwithstanding  such  undertaking,  the  plaintiff"  may 
decline  trying  his  cause  '. 

If  the  plaintiff  do  not  proceed  to  trial  pursuant 
to  notice,  or  countermand  it  in  time,  the  defen- 
dant, on  a  proper  affidavit  J,  shall  be  allowed  his 
costs  of  the  day  ^ ;  and  if  they  are  not  paid,  may 
on  an  affidavit  of  demand  and  refusal ',  have  an 
attachment:  or,  after  the  issue  is  entered,  he  may 
proceed  to  trial  by  proviso^  as  at  common  law, 
or  move  the  court  for  judgment  as  in  case  of  a 
nonsuit,  upon  the  statute  14  Geo.  II.  c.  17.  But 
the  defendant  cannot  move  for  judgment  as  in 
case  of  a  nonsuit,  and  costs  for  not  proceed- 
ing 

f  When  a  cause  is  made  a  '  Id.  ibid.  Monk  v.  Wade,  T. 

remanet,  the  costs  of  the  first  29  G.  III.  K.  B- 

sittings  or   assizes  abide  the  J  Append.  Chap.  XXXIV. 

event  of  the  trial.   Say.  Rep.  §9,  10. 

272.  4  Bur.   1988.  k  r.  ;m.  1554.  §  18.  R.  M. 

K  R.  M-  4   Ann.  (c).  8  T.  4  Ann.  (c). 

R.  245,  6.  1  Append.  Chap.  XXXIV. 

fc  ST.  R.  245,  6.  §  11. 


700  or  TRIAL  BY  PROVISO. 

ing  to  trial,  at  the  same  time"";  though  he  may 
move  for  either  of  them  separately,  and  it  is  indif- 
ferent which  is  first  moved  for.  In  practice,  it  is 
usual  for  the  defendant  to  move  for  judgment  as  in 
a  case  of  nonsuit;  and  then  if  the  court,  on  shewing 
the  cause  against  the  rule,  grant  further  time  to  the 
plaintiff,  it  is  always  on  the  condition  of  his  paying 
costs  for  not  proceeding  to  trial. 

The  trial  by  proviso  is  so  called,  from  a  clause 
in  the  distringas^  which  provides,  that  if  two  writs 
come  to  the  sheriff,  he  shall  only  execute  and  re- 
turn one  of  them ".  And  if  both  the  plaintiff  and 
defendant  happen  to  carry  down  the  record,  at  the 
same  time,  the  trial  shall  be  by  the  plaintiff's  re- 
cord, if  he  enter  it  with  the  marshal;  but  if  he  do 
not  enter  it,  the  defendant  may  proceed  on  his  re- 
cord ®.  This  trial  cannot  be  had  in  civil  actions, 
till  there  has  been  some  laches  or  default  in  the 
plaintiff,  in  not  proceeding  to  ti'ial,  after  issue 
joined;  except  in  cases  where  the  defendant  is  con- 
sidered as  an  actor,  as  in  replevin^  prohibition^  and 
quare  imp  edit  y  which  are  to  have  a  return,  con- 
sult"t!on,  and  writ  to  the  bishop  p.  In  criminal 
cases,  the  defendant  is  never  allowed  to  carry  down 

the 

»  Earl  of  Leicester  \.  Wood,  °  R.  M.  4  Ann.  (c). 

en^M.  21  Geo.  II.  p   2    Salk.  652.   R.    M.   4 

"  2  Lil.  P.  R.  612.  617.  2  Ann.  (c);   but   see  4  T,   R. 

East,  206.  (g).  757. 


OF   TRIAL   BY  PROVISO.  701 

the  record  to  trial  by  promso;  because  no  laches  can 
be  imputed  to  the  king  '.  But  in  indictments  of  trea- 
son or  felony,  if  the  attorney-general  will  delay,  the 
court  may  give  the  defendant  leave  to  bring  on  the 
trial,  as  they  see  fit  '^ :  So  in  indictments  for  misde- 
meanors, the  defendant  may,  in  the  first  instance, 
by  the  consent  of  the  prosecutor,  and  leave  of  the 
attorney-general,  carry  down  the  cause  to  trial;  but 
it  shall  not  be  allowed  by  surprise  on  the  attorney- 
general,  nor  without  consent  of  the  prosecutor,  or 
some  default  in  him  \  And  it  is  a  rule,  that  when 
an  indictment  is  removed  hither  by  the  prosecutor, 
the  defendant  shall  not  carry  it  down  to  trial,  with- 
out leave  of  the  court  on  motion  '. 

Before  the  defendant  can  have  a  trial  by  promso^ 
the  issue  must  be  entered  on  record;  and  therefore, 
unless  this  be  done,  the  defendant  must  obtain  a 
rule  from  the  master,  and  enter  it  with  the  clerk  of 
the  rules,  for  the  plaintiff  to  enter  the  issue ;  and  if 
it  be  not  entered,  he  may  sign  a  non-pros ' :  If  it 
be,  and  the  plaintiff  has  been  guilty  of  laches,  the 
defendant  should  procure  from  the  master,  and 
enter  with  the  clerk  of  the  rules,  a  rule  for  a  trial 
by  proviso  " ;  which  he  may  do,  after  he  has  given 

notice 

q  2  Salk.  652.  6  Mod.  247.  t  2  Lil.  P.  R.   84.  87.  612. 

Willes,  535.   7  T.  R.  661.   2  615.   617.  3  Salk.  362,  3.  R. 

East,  202.  M.  4  Ann.  (c). 

^  2  Salk.  652.  a   2    Str.     1055.    Append. 

»/rf.  653.  Chap.  XXXIV.  §  12. 


702  GF  JUDGMENT 

notice  of  trial "",  Of  a  trial  by  proviso,  the  defendant 
must  give  the  like  notice  to  the  plaintiff,  as  the 
plaintiff  would  have  been  obliged  to  give  to  him  ""' : 
and  if  he  do  not  proceed  to  trial  according  to  notice, 
or  countermand  it  in  time,  the  plaintiff  shall  have 
his  costs ''. 

The  delay  and  expence  attending  the  trial  by  pro- 
mso,  gave  rise  to  the  statute  14  Geo.  II.  c.  17.  by 
which  it  is  enacted,  *'  that  where  any  issue  is  or 
*'  shall  be  joined,  in  any  action  or  suit  at  law, 
"  in  any  of  his  majesty's  courts  of  record  at  fVest- 
*'  m'uister,  &c.  and  the  plaintiff  or  plaintiffs  in  any 
"  such  action  or  suit  hath  or  have  neglected,  or 
"  shall  neglect,  to  bring  such  issue  on  to  be  tried, 
"  according  to  the  course  and  practice  of  the  said 
"^  courts  respectmely^  it  shall  and  may  be  lawful  for 
*'  the  judge  or  judges  of  the  said  courts  respective- 
*My,  at  any  time  after  such  neglect,  upon  motion 
'"'■  made  in  open  court,  (due  notice  having  been 
*'  given  thereof,)  to  give  the  like  judgment  for  the 
"  defendant  or  defendants  in  every  such  action  or 
*'  suit,  as  in  cases  of  nonsuit;  unless  the  said  judge 
*'  or  judges  shall,  upon  just  cause,  and  reasonable 
'^'  terms,  allow  any  further  time  for  the  trial  of  such 
*'  issue:  And  if  the  plaintiff  or  plaintiffs  shall  ne- 
*'  gleet  to  try  such  issue,  within  the  time  so  allowed, 

"  then 

V  1  T.  R.  695.  X  R.  M.  4  Ann.  (c).  2  Str. 

w  R.  M.  1651,  797. 


AS  IN   CASE  OF  A   NONSUIT.  703 

■**  then  and  in  every  such  case,  the  said  judge  or 
''judges  shall  proceed  to  give  such  judgment  as 
*'  aforesaid.  Provided  always,  That  all  judgments, 
"  given  by  virtue  of  this  act,  shall  be  of  the  like  force 
**  and  effect  as  judgments  upon  nonsuit,  and  of  no 
"  other  force  or  effect:  Provided  also,  That  the  de- 
"  fendant  or  defendants  shall,  upon  such  judgment, 
*'  be  awarded  his,  her  or  their  costs,  in  any  action  or 
"  suit,  where  he,  she  or  they  would  upon  nonsuit  he 
"  entitled  to  the  same,  and  in  no  other  action  or  suit 
"  whatsoever." 

This  statute  has  been  held  to  extend  to  actions 
brought  by  executors  or  administrators  ^,  and  to  qui 
tarn  actions  %  as  well  as  others ;  and  also  to  the  tra- 
verse of  the  return  of  a  mandamus  ^ :  but  it  does  not 
extend  to  actions  of  repleiiin  ^,  &c,  in  which  the 
defendant  is  considered  as  an  actor,  and  may  there- 
fore' enter  the  issue,  and  carry  down  the  cause  to 
trial  himself:  and  where  there  are  two  defendants, 
one  of  whom  lets  judgment  go  by  default,  the 
other  cannot  have  judgment  as  in  case  of  a  non- 
suit ^  Also,  where  the  cause  has  been  once  car- 
ried 

y  Willes,  316,  Barnes,  130.  317. 

S.  C.  but  without  costs.     Id.  <=  Say.  Rep.  22.  Say.  Costs, 

I  1  Wils.  325.  Barnes,  315.  163.     1  Wils.  325.  S.  C.  Say. 

1  East,  554.  Rep.  103.  Say.  Costs,   164.  S. 

a  Say.  Rep.  1 10.  Say.  Costs,  C.    1   Bur.    358.  Say.  Costs, 

166.  S.C.4  T.  R.  689.  168.   S.  C.  Cowp,   483.   3  T. 

*>  1    Blac.   Rep.  375.     Say.  R.  662.  Gosse  v.  J/acaw/rt/ and 

Costs,  168.  S.  C.  3  T.  R.  662.  others,  T.  42  Geo.  III. 
5  T.  R.  400.  but  see  Barnes, 


704  OF  JUDGMENT 

ried  down  to  trial,  the  defendant  cannot  have  such 
judgment,  for  not  carrying  it  down  again  ^. 

The  course  and  practice  of  the  court,  referred  to 
by  the  statute,  is  that  which  before  regulated  the 
trial  by  promso;  and  as  the  defendant  could  not  have 
had  such  trial,  until  the  plaintiff  had  been  guilty  of 
laches  ^,  nor  until  after  the  issue  was  entered  on  re- 
cord, so  neither  till  then,  is  he  entitled  to  judgment 
as  in  case  of  a  nonsuit.  We  have  seen  ^,  that  if  the 
action  be  laid  in  London  or  Middlesex,  the  defendant 
ought  not  to  give  a  rule  for  the  plaintiff  to  enter  his 
issue,  the  same  term  in  which  it  is  joined,  unless  no- 
tice of  trial  hath  been  given  ^ :  And  accordingly  it  is 
held,  that  in  a  town  cause,  unless  notice  of  trial  has 
been  given,  the  defendant  cannot  move  for  judgment 
as  in  c^se  of  a  nonsuit,  the  next  term  after  that  in 
which  issue  was  joined,  although  it  was  joined  early 
enough,  to  enable  the  plaintiff  to  give  notice  of  trial  for 
the  sittings  after  that  term  ^ ;  the  plaintiff,  in  such  case, 
having  the  whole  of  the  next  term  to  enter  the 
issue,  and  no  laches  can   be  imputed  to  him  till 

the 

d  1   T.  R.  492.  3  T.  R.  1.  g  But  the    defendant  may 

1  H.  Blac.  101.  rule  the  plaintiff  to  enter  the 

e  For  the  time  within  which  issue,  and  move  for  judgment 

issues  must  have  beew  former-  as  in  case  of  a   nonsuit,  the 

ly  tried,  see  R.  H.  15,  16  Car.  same  term.  1  Bos.  &  Pul.  387. 

II.  Reg.  2.  R.  II.  20,  21  Car.  ^  4  t.  R.  557.   1  H.  Blac. 

II.  65.  contra;  and  see  1  H.  Blac, 

'■Jnie.  680.  123.  282. 


AS  IN   CASE  OF   A  NONSUIT.  70.5 

the  term  after  K  But  if  notice  of  trial  has  been  given, 
in  a  town  cause,  for  a  sitting  in  or  after  term,  the  de- 
fendant may  move  for  judgment  as  in  case  of  a  non- 
suit tlie  next  term,  being  the  term  after  that  in  which 
the  issue  ought  to  have  been  entered  ^.  To  support 
a  rule  for  judgment  as  in  case  of  a  nonsuit,  in  the 
next  term  after  that  in  which  the  issue  was  joined, 
the  affidavit  must  state  that  notice  of  trial  was  given 
for  a  sitting  in  or  after  the  preceding  term  • ;  but  in 
the  third  or  other  subsequent  term,  a  general  affida- 
vit, stating  the  term  when  the  issue  was  joined,  is 
deemed  sufficient "".  In  a  country  cause,  where  notice 
of  trial  is  given  to  the  assizes,  the  defendant  may 
move  for  judgment  as  in  case  of  a  nonsuit,  the  next 
term :  but  the  plaintiff  is  not  bound  to  give  notice  of 
trial,  till  the  term  succeeding  that  in  which  issue 
was  joined  " ;  and  if  he  do  not,  the  defendant  cannot 
move  for  judgment  as  in  case  of  a  nonsuit,  till  after 
the  next  assizes.  Where  the  plaintiff  withdraws  his 
record,  after  entering  it  for  trial,  the  defendant  may 
have  judgment  as  in  case  of  a  nonsuit  °. 

The 

'  Issue  was  joined  in  Easter  gerald  v.  Smith,  T.  36  G.  III. 

term,     and    notice     of     trial  ^  Harman    v,     Gilbert,    M. 

given  for  the  first  sittings  in  36  Geo.  III.  C.  B. 

Trinity;     and     the      plaintiff  '  Append.   Chap.  XXXIV. 

having   contiimed   it    till    tlie  §  14. 

sittings  after   that   term,    the  '"  Id.  ibid.   1  H.  Blac.  282 

defendant  in  the  same   term,  "2  T.  R.  734. 

moved    for  judgment     as    in  »  Read  v.  Stone,  E.  36   G- 

case  of  a  nonsuit,  which  was  III.  1  East,  346. 
refused  by   the   court.    Fitz- 
Vol.  II.                    G 


706  OF  JUDGMENT 

The  rule  for  judgment  as  in  case  of  a  nonsuit  ^  is 
a  rule  to  shew  cause,  founded  on  an  affidavit  of  the 
state  of  the  proceedings,  and  of  the  plaintiff's  default 
in  not  proceeding  to  trial ;  which  rule  has  been  held 
to  be  sufficient  notice  of  motion  within  the  act  "^ :  and 
the  roll  must  be  in  court,  at  the  time  the  motion  is 
made.  This  rule  is  made  absolute  of  course,  on  an 
affidavit  of  service,  unless  the  plaintiff  shew  a  good 
cause  for  not  proceeding  to  trial,  as  the  absence  of  a 
material  ^vitness,  &:c.  but  a  slight  cause  is  in  general 
deemed  sufficient,  even  in  a  qui  tarn  action  \  if  the 
plaintiff  will  wnd^rtakt  peremptorily  to  try  at  the  next 
sittings  or  assizes.  The  plaintiff  having  become 
insolvent  after  issue  joined,  this  was  allowed  as 
good  cause  against  judgment  as  in  case  of  a  non- 
suit; and  the  court  would  not  bind  him  down  to 
a  peremptory  undertaking,  it  being  alleged,  that 
his  creditors  were  about  to  decide,  whether  they 
would  prosecute  or  abandon  the  cause  \  So  the 
insolvency  of  the  defendant ^  after  the  action  brought, 
is  good  cause  against  judgment  as  in  case  of  a 
nonsuit*;  but  unless  the  plaintiff  will  consent  to 
stay  all  further  proceedings,  and  to  enter  a  cesset 

processus^ 

p  Append.  Chap.  XXXIV.  XXXIV.  §  13. 

§15.  r7  T.  R.  178.  I  East,  554. 

q  Lofft,    265.     1    H.    Blac.  s  Fisher  v.  Hancocky  H.  36 

527.   C.   P.  contra.  And   for  Geo.III. 

the   form    of   the   notice    of  *■  Doug.  671. 
motioA,   see   Append.    Chap. 


AS   IN   CASE  OF  A  NONSUIT.  707 

processus^  the  court  will  bind  him  down  to  a  peremp- 
tory undertaking.  The  plaintiff  in  a  qui  tarn  action  on 
the  statute  7  Geo.  II.  c.  8.  withdrew  his  record,  be- 
cause the  broker  who  negotiated  the  illegal  bargain  for 
stock,  refused  to  give  evidence,  least  he  should  sub- 
ject himself  to  a  penalty  on  the  same  statute ;  and  the 
court  held  this  a  sufficient  reason  to  discharge  a  rule 
for  judgment  as  in  case  of  a  nonsuit,  for  not  proceed- 
ing to  trial;  although  the  witness's  liability  to  be  su- 
ed would  not  be  removed,  till  after  the  end  of  three 
succeeding  terms  ^  Where  the  rule  to  shew  cause 
was  discharged,  on  an  affidavit  which  contained  an 
answer  false  in  itself,  the  court  would  not  afterwards 
open  the  matter,  on  an  affidavit  which  disproved  the 
contents  of  the  former  one ' . 

If  the  rule  be  made  absolute,  the  defendant 
having  drawn  it  up  with  the  clerk  of  the  rules,  and 
got  it  stamped  with  a  double  half-crown  stamp, 
may  sign  judgment  as  in  case  of  a  nonsuit,  and  tax 
his  costs,  &:c.  But  if  further  time  be  given,  on  a 
peremptory  undertaking,  the  plaintiff  must  draw 
up  the  rule,  and  serve  a  copy  of  it  on  the  defend- 
ant's attorney;  after  which,  if  he  do  not  proceed 
to  trial  pursuant  to  his  undertaking,  the  defend- 
ant, having  obtained  an  office-copy  of  the  rule, 
should  move  the  court  for  judgment,  on  an  affida- 
vit 

■i  7  T.  R.  178  V  3T.  R  405. 


708  OF   PUTTING  OFT   THE   TRIAL. 

vit  of  the  circumstances  ^.  And  a  mistake  in  the  de- 
claration is  not  a  good  excuse  for  not  proceeding  to 
trial,  pursuant  to  an  undertaking  ''.  The  statute  only 
gives  costs  to  the  defendant,  where  he  would  have 
been  entitled  to  them  upon  a  nonsuit :  And  therefore 
the  tenant  is  not  entitled  to  costs,  in  a  writ  of  right  5"; 
nor  are  they  allowed  as  against  an  executor,  who 
merely  sues  en  miter  droit  ^. 

If  the  defendant  be  unable  to  proceed  to  trial,  on 
account  of  the  absence  of  a  material  witness,  he  may 
move  the  court  in  term-time,  or  apply  to  a  judge  in 
vacation,  on  an  affidavit  of  the  facts,  to  put  it  off  till 
the  next  term  \  The  application  for  this  purpose 
should  in  general  be  made  two  days  at  least  before 
the  day  of  trial '',  if  the  necessity  for  it  was  at  that 
time  known  to  the  defendant ;  if  not,  it  may  be  made 
afterwards,  even  when  the  cause  is  called  on  at  nisi 
prius ".  In  that  case  however,  notice  should  first  be 
given,  with  a  copy  of  the  affidavit  to  be  produced  ^. 
In  other  cases  also,  it  is  usual,  though  not  necessary, 

to 

*  Append,  Chap.  XXXIV.  as     mentioned     above:      But 

§  16.  where  there  is  no  probabiHty 

^  Say.  Rep.  74.  Say.  Costs,  of  the  defendant's  being  pre- 

166.  S.  C.  pared   to  try  till  a  more  dis- 

y   2  Blac.  Rep.   1093.  tant  time,  he   may    apply  to 

z  4  Bur.  1928.  Willes,  316.  put  off  the  trial  till  that  time. 

Barnes,    130,    S.    C.    2     H.  i^  Barnes,  437. 

Biac.  277.  c  Peak,    Cas.   M.  Pri.   97. 

*Itis  usual  to  put  off  the  <^  Cas.  tern/}.   Hardw.    128. 
trial  only  till  the  next  term, 


i 


OF   PUTTING   OFF   THE   TRIAL.  709 

to  give  previous  notice  of  the  intended  motion  *".  The 
affidavit  should  regularly  be  made  by  the  defendant 
himself  *^,  unless  he  be  abroad,  or  out  of  the  way;  in 
which  case  it  may  be  made  by  his  attorney  ^,  or  a  third 
person :  and  it  in  general  states,  that  the  person  ab- 
sent is  a  material  witness,  without  whose  testimony 
the  defendant  cannot  safely  proceed  to  trial ;  that  he 
has  endeavoured,  withouteffect,  to  get  him  subpoenaed, 
but  that  he  is  in  hopes  of  procuring  his  future  attend- 
ance ''.  An  affidavit  in  the  common  form  is  sufficient, 
^where  no  cause  of  suspicion  appears;  and  it  is  not  ne- 
cessary to  swear  to  merits  in  such  cases ':  But  if  there 
be  any  cause  of  suspicion,  the  court  should  be  satis- 
fied from  circumstances,  first,  that  the  person  absent 
is  a  material  witness ;  secondly,  that  the  party  apply, 
ing  has  not  been  guilty  of  any  laches  or  neglect;  and 
thirdly,  that  he  is  in  reasonable  expectation  of  being 
able  to  procure  his  attendance,  at  the  time  to  which 
the  trial  is  prayed  to  be  deferred  ''. 

There 

«■  Append.  Chap.  XXXIV.  state  particularly  in  his  affida- 

§  17,  vit,  in  what  respect  his  evi- 

f  Barnes,  437.  dence  is   material.   Corbin  v. 

g  Peakc,  Cas.  JVi.  Pri.  97.  Dawson,  E.  36  Geo.  III.  C.B. 

^  Append.  Chap.  XXXIV.  ^  Duncan   v.  Thomasin,   IM. 

§  18.  In  the  common  pleas,  if  38  Geo.  III. 

the  ground  of  the  application  ^  3  Bur.  15  Ik  1  Blac.  Rep. 

be  the  absence  of  a  material  514.  S.  C.  and   see    1   Blac. 

witness,   the   defendant  must  Rep.  436. 


710  OF  PUTTING   OFF  THE   TRIAL. 

There  are  other  causes  for  putting  off  the  trial; 
such  as  the  iUness  of  the  defendant's  attorney  *,  or  on 
account  of  a  paper  published  with  intent  to  influence 
the  jury  •",  &c. :  And  when  any  of  these  occur,  the 
affidavit  should  be  framed  accordingly.  But  the  court 
will  not  put  off  a  trial,  pending  a  suit  relating  to  the 
same  matter,  in  a  spiritual  court " :  And  in  an  action 
on  a  penal  statute,  they  will  not  put  it  off,  in  favour  of 
the  plaintiffs  upon  the  absence  of  a  material  witness  °. 

'  Say.  Rep.  63.  common  pleas,  the  court  would 

^  1  Bur.  512.  4  T.  R.  285.  not  put  off  the  trial,  on  ac- 

"  2  Salk.  646.  649.  count  of  the  absence  of  a  raa- 

"  Per  Lord  Kenyan,  as  for-  terial  witness,  by  whose  evi- 

merly  ruled  by   Lord  Mans-  dence  the  defence  of  slavery 

field,  in  a  Chester  case;    M.  was  intended  to  be  established. 

;^8     Geo.     III.    And    in    the  !  Bos.  &  Pul.  454. 

CHAP- 


[    711    3 


CHAPTER  XXXV. 

6yM(?  Record  o/T^isi  Prius,  Jury,  Evidence, 
and  Witnesses. 

TT AVING,  in  the  preceding  chapter,  shewn  what 
is  to  be  done,  where  the  parties  are  not  ready 
or  willing  to  proceed  to  trial ;  I  shall  next  consider, 
when  they  are,  the  preparatory  steps  to  be  taken, 
with  regard  to  the  record  of  nisi  prius  ^  jury,  evidence , 
and  witnesses. 

The  record  of  nisi  prius,  which  is  supposed  to  be 
transcribed  from  the  issue- roll,  contains  an  entry  of 
the  declaration  and  pleadings,  and  the  issue  or  issues 
joined  thereon,  with  the  award  of  the  venire  facias, 
as  in  the  issue  or  paper-book ;  and  is  in  nature  of  a 
commission  to  the  judges  at  nisi  prius,  for  the  trial 
of  the  cause  ^.  It  begins  with  the  placita,  or  style  of 
the  court,  of  the  term  issue  was  joined ;  and  after  the 
award  of  the  venire  facias,  there  is  a  second  placita  ^ 
of  the  term  in  or  after  which  the  cause  is  tried;  and 
the  record  then  concludes  with  an  entry,  called  the 
jurata,  as  follows: 

to 

» Append.   Chap.    XXXV.  in  the  Common  Pleas,  where 

§  1 .  the  parties  do  not  go  to  trial, 

^  For  the  reason  of  a  se-  the  same  term  issue  is  joined, 

cond  t^latita    in    the   King's-  see    Gilb.   C.   P.   80,   81.     1 

Bench,  and  why  jt  is  omitted  Cromp.  234, 


or  THE  llE<iORD 


■ to  wit.  The  jury  betwee?i  A.  B.  by  his  attorney 

plaintiff,  and  CD.  defendant,  of  a  plea  of  ^c.  (ac- 
cording to  the  nature  of  the  action,)  is  respited  before 
our  lord  the  king  at  fFestminster,  (or,  by  original, 
wheresoever,  &c.)  until (the  return  of  .the  dis- 
tringas,) unless  the  king''s  right  trusty  and  well-beloved 
Edward  Lord  Ellenborough,  his  majesty'' s  chief -jus- 
tice, assigned  to  hold  pleas  before  the  king  himself,  (if 
in  London  or  Middlesex;  or,  if  at  the  assizes,  unless 
his  majesty'' s  justices  assigiied  to  take  the  assizes,  in 

and  for  the  county  of ,)  shall  first  come  on  (the 

day  of  trial,)  at  the  Guildhall  in  the  said  city,  (if  in 
London;  or  if  in  Middlesex,  at  Westminster-hall,  or, 
if  at  the  assizes,  at  the  place  of  trial,  in  the  said  coun- 
ty) according  to  the  form  of  the  statute  in  such  case 
made  and  provided,  for  default  of  the  jurors,  because 
none  of  them  did  appear:  Therefore  let  the  sheriff 
have  the  bodies  of  the  said  jurors,  to  make  the  said  ju- 
ry, between  the  parties  aforesaid,  of  the  plea  aforesaid, 
accordifigly;  the  same  day  is  given  to  the  parties  afore- 
said, at  the  same  place. 

At  the  assizes,  the  jurata  concludes  with  what  is 
called  the  sciendum,  as  follows :  And  be  it  kfiown,  that 
the  king''s  writ  on  record  was  delivered  to  the  deputy 

sheriff  of  the  said  county,  on the day  of 

in  the  same  term,  (the  last  day  of  term  preced- 
ing die  trial,)  before  our  lord  the  king  at  Westminster , 
to  be  executed  according  to  law,  at  his  peril. 

The 


OF   NISI    PRIUS.  713 

The  record  of  nisi  prius  was  formerly  made  out; 
by  the  clerks  of  the  chief-clerk  ";  but  it  is  now  done 
by  the  attomies,  and  is  to  be  fairly  engrossed,  on  a 
press  or  skin  of  parchment,  stamped  with  a  double 
half-crown  stamp ''.  The  record  being  engrossed,  is 
carried  to  the  nisi  prius  office,  where  it  is  sealed  and 
passed;  for  which  is  paid  seven  shiUings  and  six- 
pence for  the  first  eight  sheets,  seven  shillings  for 
every  eight  sheets  after,  and  sixpence  to  the  sealer  ^. 
In  London  and  Middlesex^  all  records  of  nisi  prius 
are  to  be  sealed,  on  or  before  the  respective  days  ap- 
pointed by  the  lord  chief-justice,  in  the  sittings- 
paper,  for  their  trial  ^  And  there  is  an  old  rule  of 
court,  that  no  record  of  nisi  prius ^  for  the  trial  of  an 
issue  at  the  assizes,  shall  be  sealed  after  the  end  of 
three  weeks  next  after  the  end  of  the  term  ^ :  But  by 
obtaining  a  judge's  order,  for  which  the  clerk  is  paid 
two  shillings,  and  which  he  will  procure  at  his 
leisure,  the  record  may  now  be  sealed  at  any  time 
before  the  assizes'".  In  causes  which  stand  over 
from  one  sitting  to  another,  the  records  should  be 
regularly  resealed,  previous  to  the  sitting  to  which 

they 

'^  R.  T.  1   Jac.   II.   R.  M.  former  rules  of  T.  15  Car.  II. 

5  Ann.  reg.  1.  reg.  2.    R.  H.    15  &  16  Car. 

JR.  M.  5  Ann.  reg.  1.  (A).  II.  reg.    2.    R.  H.   20  &  2  1 

e  Same  rule,  (c).  Car.  II. 

iR.  E.7  Geo.  I.  ^rt.  31  Car.  II.  (a) 
K  R.  T.  31  Car.  II.  anU  see 

Vol  II.  H 


714  OF  THE  JURY-PROCESS. 

they  stand  over;   or  in  default  thereof,  the  causes 
cannot  be  tried '. 

If  the  issue  has  not  been  previously  entered  of  re- 
cord, it  must  be  so  entered,  or  at  least  an  mcipitur 
made,  before  the  passing  of  the  record  of  nisi  prius: 
For  it  is  a  rule  of  court,  that  no  record  of  nisi 
prius  shall  be  sealed,  or  passed  at  the  nisi  prius 
office,  by  the  custos  brei}ium,  or  any  clerk  of  that 
office,  before  the  issue  in  that  cause  be  fairly  entered 
on  record,  or  an  incipitur  thereof,  and  such  entry, 
with  the  record  of  nisi  prius ^  be  first  brought  to  and 
signed  by  the  secondary ;  for  which  no  fee  shall  be 
demanded  or  paid,  but  the  usual  and  accustomed  fee, 
due  to  the  chief  clerk,  for  entry  of  such  issue  on  re- 
cord ^.  In  practice  it  is  usual,  when  the  record  has 
not  been  previously  entered,  to  make  an  incipitur  on 
a  roll  of  the  term  issue  was  joined,  and  to  take  the 
roll,  record  of  nisi  prius^  and  draft  of  the  issue,  to  the 
clerk  of  the  judgments,  who  enters  the  issue,  and 
marks  the  roll,  record  and  issue-paper,  taking  three 
shillings  and  sixpence  for  the  first  ten  sheets,  and  one 
''shilling  for  every  six  more. 


The  first  process  for  convening  the  jury^  is  a 
Deriire  facias,  which  is  a  judicial  writ,  commanding 
the  sheriff,  or  other  officer  to  whom  it  is  directed, 

to 

i  R.  E.  33  G.  III.  E.  1657.  and  T.    1  Jac.  II 

k  R.  M.  5  Ann.  reg.  1.  See    ante,  682, 
also   the   rules   of   11.    1649, 


OF  THE  JU»Y-PROCESS. 


715 


to  cause  to  come  before  the  king  at  Westmi?ister^  (by 
<^///,  or  by  o/7^?«<^/ wheresoever,  &c.)  on  a  certam 
day  therein  mentioned,  twelve  free  and  lawful  men 
of  the  body  of  the  county  ^,  each  of  whom  has  ten 
pounds  a  year  of  lands,  tenements,  or  rents,  at  the 
least ",  by  whom  the  truth  of  the  matter  may  be  the 
better  known,  and  who  are  in  no  wise  of  kin  either 
to  the  plaintiff  or  to  the  defendant,  to  make  a  jury  of 
the  country  between  the  parties  in  the  action,  be- 
cause as  well  the  plaintiff  as  the  defendant,  between 
whom  the  matter  in  variance  is,  have  put  themsehes 
upon  that  jury;  and  that  he  return  the  names  of  the 
jurors",  &c. 

By  the  statute  JVestm.  2.  (13  Ediu.  I.)  c.  30.  the 
clause  of  nisi  prius  was  directed  to  be  inserted  in  the 
venire  facias ;  and  at  first,  the  trial  was  had  upon 

that 


1  Stat.  4  Ann.  c.  16.  §  6. 
and  see  the  24  Geo.  II.  c.  18. 
Willes,  597.  1  Wils.  125.  S.  C. 

"»  Stat.  4  8c  5  W.  &  M.  c. 
24.  §  15.  and  by  the  3  G.  II. 
c.  25.  §  18.  any  leaseholder, 
for  the  term  of  500  years  ab- 
solute, or  for  any  term  deter- 
minable upon  life  or  lives,  of 
an  estate  in  possession  in  his 
own  right,  of  the  clear  yearly 
value  of  twenty  pounds  or  up- 
wards, over  and  above  the 
rent  reserved,  is  qualified  to 
serve  upon  juries ;  and  in 
Londoriy  any  person   is   qua- 


lified, who  is  a  householder 
within  the  city,  and  has  lands, 
tenements,  or  personal  estate, 
to  the  value  of  one  fnmdred 
pounds.  Stat.  ult.  §  19.  Also, 
by  the  4  Geo.  II.  c.  7.  §2.  none 
shall  be  returned  to  serve  on 
juries  in  Aliddlesexy  who  have 
served  within  the  two  last 
terms:  and  by  §  o.  leaseholders 
foi"  any  term,  where  the  im- 
proved rents  amount  to  50/. 
/2er  annum,  are  liable  to  serve 
on  juries  in  Middlesex. 

"  Append.   Chap.   XXXV. 
§2,  8cc. 


716  OF   THE  JURY-PIIOCESS. 

that  writ  °,  as  it  still  is,  in  the  case  of  a  trial  at  bar. 
This  practice  was  attended  with  many  inconvenient 
cies :  for  in  the  first  place,  the  jury  were  not  obliged  to 
attend,  under  any  penalty,  on  the  day  of  nisi  prius; 
and  ifthey  did  attend,  the  defendant  might  have  cast 
an  essoig/i,  and  so  the  jury,  after  much  expence  and 
trouble,  were  obliged  to  return,  leaving  the  cause 
untried  p.  Another  inconvenience  was,  tliat  the  par- 
ties, not  seeing  the  panel  beforehand,  could  not  be 
prepared  to  make  their  challenges  '^.  To  obviate  this 
latter  inconvenience,  it  was  enacted,  by  the  statute 
42  Ediv.  III.  c.  11.  that  *'  no  inquests,  except  of 
"  assize  and  gaol- deli  very,  shall  be  taken  by  writ  of 
*'  nisi  pri'us,  or  otherwise,  at  the  suit  of  any  one, 
*'  before  the  names  of  all  them  that  shall  pass  in  the 
*'  inquests,  shall  be  returned  in  court."  From 
thenceforward,  the  clause  of  nisi  priiis  could  not  be 
inserted  in  the  'uenire  facias^  as  was  directed  by  the 
statute  Westm..  2. ;  and  therefore  it  was  take.n  out  of 
that  writ,  and  placed  in  the  distringas  %  as  the  prac- 
tice continues  to  this  day.  The  iienire  too  was  made 
returnable  on  a  day  before  the  trial,  by  which  means 
they  got  rid  of  the  essoign  at  nisi  prius:  for  by  the 
statute  of  Marlbridge,  (52  Hen.  III.)  c.  13.  "  after 
*'  a  man  hath  put  himself  upon  any  inquest,  he  shall 

"  have 

o  Gilb.  C.P.  74.  2  Salk.  454.         P  Id.  76.  7. 
2  Ld.  Raym.  1143.  S.  C.  ^  /^.  77.  2  Salk.  454.  2  Ld 

P  Gilb.  C.  P.  74,  5. 78.  Raym.  1 143.  S.  C. 


OF   THE  JURY-PROCESS.  717 

*'  have  but  one  essoign,  or  one  default;"  and  by  the 
statute  Westm.  2.  (13  Edw.  I.)  c.  27.  the  essoign 
shall  be  allowed  him  at  the  next  day,  which  is  the 
day  of  the  return  of  the  venire  '.  And  though  the  de- 
fendant never  appears  now,  upon  the  return  of  the 
"venire,  yet  heretofore  he  was  demanded  solemnly; 
and  if  he  made  default,  there  went  out  a  distringas 
against  the  jury,  with  a  clause  in  it  to  distrain  the 
defendant:  And  if  after  this,  he  made  default  again, 
it  was  peremptory,  because  there  was  no  process  left 
to  bring  him  in  ^  If  a  -venire  be  awarded,  and  the 
parties  do  not  go  to  trial  for  several  terms,  a  new 
i)e?iire  is  awarded  from  term  to  term,  and  the  cause 
continued  by  vicecomes  non  misit  breiie"'-,  but  the 
venire  never  in  fact  issues,  till  the  term  when  the 
cause  is  tried. 

The  distringas,  upon  which  the  trial  is  had,  is  a 
judicial  writ,  commanding  the  sheriff,  or  other  officer 
to  whom  it  is  directed,  to  distrain  the  jurors,  by  all 
their  lands  and  chattels,  &c.  so  that  he  may  have 
their  bodies  before  the  king  at  IVestniinster,  or  (by 
original)  wheresoever,  &c.  on  [the  first  return-day 
in  term,  after  the  trial],  or  before  the  chief-justice, 

or 

•^  Gilb.  C.  P.  74,   5.    77,  8.  925.  S,  C.   • 

iSalk.  216.  2  Ld.Raym.925.  "  Gilb.  C.  P.  83.  and  sec 

S.C.  2  Salk.  454.  2  Ld.  Raym.  Append.  Chap.  XXXI.  §  32, 

1143.S.  C.  34. 

^  1  Salk.  216.  2  Ld.  Raym.  . 


718  or   THE   JUKY-PROCESS. 

or  judges  of  assize,  if  they  shall  first  come  on  [the 
day  of  trial"),  at  [the  place  where  the  cause  is  intend- 
ed to  be  tried],  to  make  a  certain  jury  between  the 
said  parties,  of  a  plea  of,  &c.  (according  to  the 
nature  of  the  action,)  and  to  hear  thereof  their  judg- 
meat  of  many  defaults  ^',  &c. 

After  a  distringas  had  issued,  with  a  clause  of  nisi 
pi'ius,  if  the  cause  stood  over,  for  default  of  jurors, 
till  a  subsequent  term,  the  plaintiff  at  common  law 
could  not  have  had  a  'venire  de  novo^,  unless  for  some 
fault  in  executing  or  returning  the  distringas  "" ;  but 
he  must  have  sued  out  an  alias  or pluries  distringas, 
for  bringing  in  the  same  jury.  And  still,  if  after  a 
special  jury  has  been  struck,  the  cause  goes  off  for 
default  of  jurors,  no  new  jury  can  be  struck;  but  the 
cause  must  be  tried  by  the  jury  first  appointed  ^. 
And  the  same  jury  shall  serve  for  the  trial  of  the 
cause,  notwithstanding  an  intermediate  change  of 
sheriffs  ^ 

But  with  regard  to  common  juries,  it  is  enacted, 
by  the  statute'  7  &  8  /F".  III.  c.  32.  \  I.  ''  that  if 
*^  any  plaintiff  or  demandant,  in  any  cause  depend- 
"  ing  in  any  of  the  courts  at  Westminster,  which 
*'  shall  be  at  issue,  shall  sue  forth,  or  bring  to  any 
"  sheriff,  any  writ  of  'oenire  facias,  upon  which  any 

*'  writ 

••-  Append.  Chap.   XXXV.         ^  Id.  92,  5  T.  R.  464. 
§  6.  y  5  T.  R.  453. 

^'  Gilb.  C.  P.  S3.  ■        z  Cowp.  412. 


I 


OF   THE  JURY-PROCESS.  719 

-*'  writ  of  habeas  corpora  or  distringas^  with  a  nisi 
*'  priuSj  shall  issue,  in  order  to  the  trial  of  such  issue 
"  at  the  assizes,  and  such  plaintiff  or  demandant  shall 
"  not  proceed  to  the  trial  of  the  said  issue,  at  the  said 
"  first  assizes  after  the  teste  of  every  such  writ  of 
"  habeas  corpora  or  distringas y  \v'i\h  a  7iisi  priuSs 
"  that  then  and  in  all  such  cases,  (other  than  where 
"  iiieivs  by  jurors  shall  be  directed  '^,)  the  plaintiff  or 
"  demandant,  whensoever  he  shall  think  fit  to  try  the 
'*  said  issue  at  any  other  assizes,  shall  sue  forth  and 
"  prosecute  a  new  writ  of  'venire  facias,  directed  to 
*'  the  sheriff,  in  this  form:  That  you  cause  to  come 
"  anew  ^,  before,  &:c.  twelve  free  and  lawful  men  of 
*'  the  neighbourhood  of  j1.  [now,  of  the  body  of  your 
*'  county,]  each  of  whom  has  ten  pounds  a  year,  of 
"  lands,  tenements  or  rents,  at  the  least,  by  whom, 
"  &c.  and  who  neither,  &c.  and  the  residue  of  the 
*'  said  writ  shall  be  after  the  ancient  manner;  which 
"  writ  being  duly  returned  and  filed,  a  writ  of  habeas 
*'  corpora  or  distringas,  with  a  nisi  prius,  shall  issue 
"  thereupon,  (for  whicli  the  ancient  and  accustomed 
"  fees  shall  be  taken,  and  no  more,  as  in  the  case  of 
"  the  pluries  habeas  corpora  or  distringas,  with  a  nisi 
"  prius,)  upon  which  the  plaintiff  or  demandant  shall 
"  and  may  proceed  to  trial,  as  if  no  former  writ  of 

'venire 

^  Com.  Rep.  248.  »>  Append.  Chap.  XXXV.  §  5. 


720  OF   THE  JURY-PROCESS. 

"  "venire  facias  had  been  prosecuted  or  filed  in  that 
"  cause,  and  so  tones  quot'ies  as  the  case  shall  require. 
''  And  if  any  defendant  or  tenant,  in  any  action  de- 
''  pending  in  any  of  the  said  courts,  shall  be  minded 
"  to  bring  to  trial  any  issue  joined  against  him,  when 
"  by  the  course  in  any  of  the  said  courts,  he  may 
"  lawfully  do  the  same  by  proviso^  such  defendant  or 
' '  tenant  shall  or  may,  of  the  issuable  term  next  pre- 
"  ceding  such  intended  trial,  to  be  had  at  the  ne:^t 
*'  assizes,  sue  out  a  new  ijemre  facias  to  the  sheriff, 
''  in  form  aforesaid,  by  proi^iso;  and  prosecute  the 
'^  same  by  writ  o^  habeas  corpora  or  distringas^  with 
"  a  nisi  prius^  as  though  there  had  not  been  any  for- 
*'  mer  'uenire  facias  sued  out  or  returned  in  that 
"  cause,  and  so  toties  quoties  as  the  matter  shall  re- 
"  quire." 

Tlie  "uenire  and  distringas  are  directed,  according 
to  the  award  of  these  writs  %  to  the  sheriff  of  the 
county  in  which  the  action  is  laid,  or  of  an  adjoin- 
ing county:  but  where  the  sheriff  is  a  party,  or 
interested  in  the  cause,  they  are  directed  to  the 
coroner^;  or  if  there  are  two  sheriffs,  and  one  of 
them  is  interested,  to  the  other:  and  if  the  coro- 
ner, as  well  as  the  sheriff,  is  interested,  the  'venire 
and  distringas  are  directed  to  elisors  ".  In  a  county- 
palatincy   the   record  is   sent  by   mittimus    to   the 

justices 

«:  Ante,  672. 


-OF   THE  JURY-PROCESS.  721 

justices  there,  commanding  them  to  issue  the  jury- 
process,  and  when  the  cause  is  tried,  to  send  the 
record  back  again  to  the  court  above  '^. 

In  point  of  form,  the  venire  and  distringas  are 
general,  or  special.  Where  only  one  issue  is  to  be 
tried,  or  there  are  several  issues  of  the  same  nature, 
the  venire  and  distringas  are  general,  to  make  a  jury 
of  the  countr}'',  between  the  parties,  of  the  plea  or 
action,  whatever  it  may  be:  But  where  there  are 
several  issues,  in  fact  and  in  law,  or  several  defen- 
dants, and  some  of  them  plead  and  others  let  judg- 
ment go  by  default,  the  writs  are  special,  as  well  to 
try  the  issues  in  fact,  as  to  assess  the  damages  upon 
the  issues  in  law,  or  against  the  defendants  who  let 
judgment  go  by  default.  If  the  defendant  carry 
down  the  cause  by  proviso,  the  following  clause  is 
inserted  in  the  distringas:  Provided  always,  that  if 
two  writs  shall  come  to  the  sheriff,  he  shall  only  exe- 
cute and  7-etur?i  one  of  them  ^ 

The  venire  facias  is  tested  on  the  first  day  of  the 
term,  in  or  after  which  the  cause  is  to  be  tried; 
and  is  made  returnable  on  some  day  before  the  trial, 
being  a  general  return-day,  or  day  certain,  accord- 
ing to  the  previous  proceedings  ^ :  If  in  a  country 

cause, 

d  Jnte,  672,  3,  and  see  Ap-  Ent.   676.  and   see   Append, 

pend.  Chap.  XXXV.  §  12,  Sec.  Chap.  XXXV.  §  7. 

e  2    Lil.    P.   R.  636.   ^7i(e,  s  On  the  traverse  of  an  in- 

680,    81.  and    see    Append,  quisition  out  of  chancery,  the 

Chap.  XXXV.  §  3,  4.  venire  is  returnable  on  a  gene- 

f  2  Lil.  P.  R.  612.  617.  Lil.  ral  return-day.  I  Wils.77. 

Vol.  II.  I 


722  OF  COMMON  JURIES. 

cause,  the  'venire  by  original  is  made  returnable  oa 
the  last  general  retuni-day,  or  if  by  bill^  on  the  last 
day  of  the  term,  before  the  assizes :  And  the  distrin- 
gas is  tested  on  the  quarto  die  post  of  the  return  by 
original^  or  by  billon  the  return  of  the  venire;  and 
made  returnable  on  the  first  general  return-day,  or 
day  certain,  in  term-time,  after  the  trial.  It  is  not 
necessary  by  origitial,  that  there  should  be  fifteen 
days  between  the  teste  and  return  of  the  jury-pro- 
cess ^.  The  venire  facias  and  distringas  are  sued  out 
together;  and  after  being  sealed,  (for  they  do  not  re- 
quire signing,)  are  taken  to  the  sheriff's  office,  to  be 
returned.  In  causes  which  stand  over  from  one  sit- 
ting to  another,  the  writ  of  distri?igas  should  be 
regularly  altered  and  rcsealed,  previous  to  the  sit- 
ting to  which  they  stand  over;  or  in  default  thereof, 
the  causes  cannot  be  tried  '. 

The  jury  returned  by  the  sheriff,  on  the  venire 
facias^  is  common  or  special.  A  common  jury  is 
nominated,  summoned,  and  returned  by  the  sheriff, 
pursuant  to  the  balloting  act,  (3  Geo.  II.  c.  25. 
§  8.)  by  which  it  is  enacted,  "  that  every  sheriff 
'*^  or  other  officer,  to  whom  the  return  of  the  ve- 
'■'■  nire  facias  jiiratores,  or  other  process  for  the  trial 
"  of  causes,  before  justices  of  assize  or  nisi  prius, 
"  in  any  county  in  England^  doth  or  shall  belong, 

"  shall 

^  Stcit.  13  Car.  n.  Stat.  2.  c.  2.  §  6.      i  R.  E.  33  G.  IIL 


OF  COMMON  JURIES.  /2a 

*'  shall  upon  his  return  of  every  such  writ  of  'vewre 
*^  facias  J  (unless  in  causes  intended  to  be  tried  at 
''  bar,  or  in  cases  where  a  special  jury  shall  be 
"  struck  by  order  or  rule  of  court,)  annex  a  panel 
"  to  the  said  writ,  containing  the  christian  and  sur- 
"  names,  additions  and  places  of  abode,  of  a  com- 
*'  petent  number  of  jurors,  named  in  the  lists  men- 
*'  tioned  in  the  act,  as  qualified  to  serve  on  juries, 
"  (the  names  of  the  same  persons  to  be  inserted  in 
"  the  panel,  annexed  to  every  veriire  facias^)  for  the 
"  trial  of  all  issues  at  the  same  assizes,  in  each  re- 
*'  spective  county;  which  number  of  jurors  shall  be 
"  not  less  than  forty-eight  in  any  county,  nor  more 
"  than  seventy-two,  without  direction  of  the  judges 
**  appointed  to  go  the  circuit,  and  sit  as  judges  of  as- 
"  size  or  iiisi  prius  in  such  county,  or  one  of  them, 
"  who  are  thereby  respectively  empowered  and  re- 
**  quired,  if  he  or  they  see  cause,  by  order  under 
''  his  or  their  respective  hand  or  hands,  to  direct  a 
*'  greater  or  lesser  number,  and  tli'en  such  number 
"  as  shall  be  so  directed  shall  be  the  number  to 
'*  serve  on  such  jury;  and  that  the  writs  of  habeas 
'*  corpora  juratorum^  or  distringas^  subsequent  to 
"  such  Avrit  o^  "venire  facias  jurator'es,  need  not  havQ 
*'  inserted  in  the  bodies  of  such  respective  writs,  the 
'*  names  of  all  the  persons  contained  in  such  panel, 
"  but  it  shall  be  sufficient  to  insert  in  the  mandatory 
"  part  of  such  writs  respectively,  the  bodies  of  the 

"  several 


724  or  COMMON  juries. 

sei)eral  persons  named  in  the  panel  to  this  writ  an- 
?iexed,  or  words  of  the  like  import,  and  to  annex 
to  such  writs  respectively,  panels,  containing  the 
same  names  as  were  returned  in  the  panel  to  such 
venire  Jacias,  with  their  additions  and  places  of 
abode,  that  the  parties  concerned  in  any  such 
trials  may  have  timely  notice  of  the  jurors  who 
are  to  serve  at  the  next  assizes,  in  order  to  make 
their  challenges  to  them,  if  there  be  cause;  and 
that  for  making  the  returns  and  panels  aforesaid, 
and  annexing  the  same  to  the  respective  writs,  no 
other  fee  or  fees  shall  be  taken,  than  what  were 
then  allowed  by  law  to  be  taken  for  the  return  of 
the  like  writs,  and  panels  annexed  to  the  same; 
and  that  the  persons  named  in  such  panels  shall 
be  summoned  to  serve  on  juries,  at  the  then  next 
assizes  or  sessions  of  nisi  prius,  for  the  respective 
counties  to  be  named  in  such  writs,  and  no 
other  •"." 

And  by  §  llv  "  the  name  of  each  and  ever)' 
person  who  shall  be  summoned  and  impaneled 
as  aforesaid,  with  his  addition  and  the  place  of 
his  abode,  shall  be  Avritten  in  several  and  distinct 
pieces  of  parchment  or  paper,  being  all  as  near 
as  may  be  of  equal  size  and  bigness,  and  shall 
be  delivered  unto  the  marshal  of  such  judge  of 
assize  or  nisi  prius^  &c.  who  is  to  try  the  cause  in 

"the 

kSeeR.  E.  1651. 


OF   SPECIAL  JURIES.  725 

*'  the  said  county,  by  the  under-sheriff  of  the  said 
"  county,  or  some  agent  of  his;  and  shall,  by  di- 
*'  rection  and  care  of  such  marshal,  be  rolled  up,  all 
"  as  near  as  may  be  in  the  same  manner,  and  put 
'*  together  in  a  box  or  glass,  to  be  provided  for  that 
"  purpose." 

Upon  the  execution  of  a  writ  of  inquiry,  the  plain- 
tiff, we  may  recollect,  sometimes  moves  the  court 
for  a  rule  to  have  a  good  ]ury  \  which  is  a  better  sort 
of  common  jury"':  And  before  the  introduction  of 
special  juries,  this  rule  appears  to  have  been  fre- 
quently granted,  for  the  trial  of  causes  at  nisiprms  "*. 

A  special  jury  is  nominated,  in  the  presence  of 
the  attomies  on  both  sides,  by  the  secondary,  or 
master  of  the  King's  Bench-office,  who  makes  out 
a  list  of  forty-eight  jurors,  from  the  freeholders' 
book,  or  book  kept  by  the  sheriff,  of  persons  quali- 
fied to  serve  on  juries,  out  of  whom  each  party  is 
at  liberty  to  strike  twelve,  and  the  remaining  twen- 
ty-four are  summoned  and  returned  by  the  sheriff. 
Special  juries  appear  to  have  been  first  introduced 
upon  trials  at  bar,  in  causes  of  great  consequence; 
wherein  the  court  would  anciently  make  a  rule, 
upon  motion  and  affidavit,  for  the  secondary  to 
name  forty-eight  freeholders,  and  that  each  party 

should 

1  Mte^  513,  19.         "»  5  T,  R.  460.  "  1  Str.  265. 


726  OF  SPECIAL  JURIES. 

should  strike  out  twelve,  by  one  at  a  time,  (the 
plaintiff  or  his  attorney  beginning  first,)  and  that  the 
remaining  twenty-four  should  be  the  jury,  to  be  re- 
turned for  the  trial  of  the  cause  °.  A  rule  having 
been  made  accordingly,  the  plaintiff's  attorney  at- 
tended the  secondary,  but  the  defendant's  attorney 
^vould  not  attend,  and  thereupon  the  secondary 
nominated  forty-eight,  in  the  presence  of  the  plain- 
tiff's attorney  only :  Upon  a  motion  to  set  aside  this 
nomination,  the  court  thought  fit  to  order  a  new  jury 
to  be  struck ;  but  made  it  a  standing  rule  for  the 
future,  that  when  the  secondary  is  to  strike  a  jury, 
he  shall  give  notice  to  the  attornies  on  both  sides  to 
be  present,  and  if  one  comes  and  the  other  does  not, 
he  that  appeal's  shall,  according  to  the  ancient 
course,  strike  out  twelve,  and  the  master  shall 
strike  out  the  other  twelve,  for  him  that  is  absent  p. 
If,  by  rule  of  court,  the  secondary  is  ordered  to 
strike  a  jury,  in  case  it  be  not  expressed  in  the  rule 
that  he  shall  strike  forty-eight,  and  each  of  the  par- 
ties shall  strike  out  twelve,  the  secondary  is  to  strike 
twenty-four,  and  the  parties  have  no  liberty  to  strik* 
out  any ''. 

Analogous  to  the  practice  upon  trials  at  bar,  it 
was  sometimes  usual,  in  other  cases,  where  it  was 
conceived  an  indifferent  jury  would  not  be  return^ 

ed, 

«  2  Lil.  P.  R.  123.  T.  8  W.  III.  reg.  2. 

p  Id.  127.  1  Salk.  405.  R,  <»  1  Salk.  405. 


OF   SPECIAL  JURIES.  727 

ed,  for  the  court  upon  motion  to  order  the  sheriff  to 
attend  the  secondary,  with  the  freeholders'  book, 
and  the  secondary,  in  the  presence  of  the  attornies 
on  both  sides,  to  strike  a  jury  '.  But  probable  mat- 
ter must  have  been  shewn  to  the  court,  to  induce 
them  to  grant  this  rule ' :  and  it  being  doubted, 
whether  it  could  be  had  without  consent  \  it  was 
declared  and  enacted  by  the  statute  3  Geo.  II.  c.  25. 
§  15.  "  that  it  shall  and  may  be  lawful  to  and  for  his 
"  majesty's  courts  of  King's  Bench,  &c.  on  the 
*'  motion  of  any  plaintiff  or  plaintiffs,  defendant  or 
"  defendants,  in  any  action,  cause  or  suit  what- 
"  soever,  depending  or  to  be  brought  and  carried 
"  on  in  the  said  courts  of  King's  Bench,  &c.  and 
"  the  said  courts  are  thereby  authorised  and  re- 
"  quired,  upon  motion  as  aforesaid,  to  order  and 
*'  appoint  a  jury  to  be  struck,  before  the  proper  of- 
"  ficer  of  each  respective  court,  for  the  trial  of  any 
"  issue  joined  in  any  of  the  said  cases,  and  triable 
*'  by  a  jury  of  twelve  men,  in  such  manner  as  spe- 
"  cial  juries  have  been  and  are  usually  struck  in 
"  such  courts  respectively,  upon  trials  at  bar  had  in 
*'  the  said  courts;  which  said  jury  so  struck  as 
"  aforesaid,  shall  be  the  jury  returned  for  the  trial 
"  of  the  said  issue." 

Upon  this  statute  it  was  holden,   that  the  fees 
for  striking  a  special  jury  should  be  paid  by  the 

party 

^  2  Lil.  P.  R.  123.  Td.  Ibid.  •  ],i.  12:. 


728  OF  SPECIAL  JURIES. 

party  applying  for  it;  but  that  the  other  expences  of 
the  trial  should  abide  the  event  of  the  suit ".  This 
being  found  inconvenient,  gave  rise  to  the  statute 
24  Geo.  II.  c.  18.  §  1-  by  which  it  is  enacted,  "  that 
"  the  party  who  shall  apply  for  a  special  jury,  shall 
^'  not  only  bear  and  pay  the  fees  for  striking  such 
"  jury,  but  shall  also  pay  and  discharge  all  the  ex- 
"  pences,  occasioned  by  the  trial  of  the  cause  by 
"  such  special  jury;  and  shall  not  have  any  further 
'*  or  other  allowance  for  the  same,  upon  taxation  of 
"  costs,  than  such  party  would  have  been  entitled 
*'  unto,  in  case  the  cause  had  been  tried  by  a  com- 
"  mon  jury,  unless  the  judge  before  whom  the 
"  cause  is  tried,  shall  immediately  after  the  trial, 
*'  certify  in  open  court,  under  his  hand,  upon  the 
*'  back  of  the  record,  that  the  same  was  a  cause 
"  proper  to  be  tried  by  a  special  jury""."  And  by 
the  same  statute,  §  2.  "no  person  who  shall  serve 
"  upon  a  special  jury,  shall  be  allowed  or  take,  for 
"  serving  on  any  such  jur}',  more  than  the  judge 
"  who  tries  the  cause  shall  think  just  and  reason- 
"  able,  not  exceeding  one  pound  one  shilling,  ex- 
"='  cept  in  causes  where  a  view  hath  been  directed. '* 

Since 

u  Say.  Costs,    181,   2  Str.  judge  cannot  certify  for  the 

1080.    Cas.    Pr.    C.    B.  138.  costs  of  a  special  jury.  1  Esp. 

Barnes,  123.  S.  C.  Cas.  M.  Pri.  229. 

^  In   criminal   cases,  the 


OF   SPECIAL  JURIES.  729 

Since  the  making  of  this  statute,  the  motion  for  a 
special  jury  is  become  a  motion  of  course,  requiring 
only  counsel's  signature ;  upon  which  a  rule  is  drawn 
up  by  the  clerk  of  the  rules,  and  an  appointment  ob- 
tained tliereon  from  the  master,  to  nominate  the  for- 
ty-eight: Which  rule  should  be  drawn  up  in  London 
and  Middlesex,  before  the  adjournment-day  after 
each  term  '' .  A  copy  of  this  rule  and  appointment  is 
served  upon  the  opposite  attorney,  and  also  on  the 
under-sheriff,  who  attends  the  master,  at  the  time  ap- 
pointed, with  the  freeholder's  book;  and  the  nomi- 
nation being  made,  lists  of  the  persons  nominated 
are  made  out  for  each  party,  by  the  master's  clerk. 
Another  appointment  is  then  obtained  from  the  mas- 
ter, to  reduce  the  jury,  and  served  on  the  opposite 
attorney;  upon  which  the  attornies  on  both  sides 
should  attend,  and  the  master  will  strike  out  twelve 
names  for  each  of  them,  beginning  with  the  plaintiff 
first,  or  if  either  of  the  attornies  does  not  attend,  he 
will  strike  out  twelve  names  for  him  that  is  absent ''. 
The  plaintiff,  it  seems,  ought  in  all  cases  to  sue  out 
the  jury-process,  even  though  the  special  jury  be 
moved  for  by  the  defendant  ^;  and  in  London^  he 
chuses  his  own  officer  to  summon  them. 

The   facility   of  obtaining   a   rule   for  a   special 
jury  is  attended  with  this  inconvenience,  that  when 

the 

«  R.T.  30  G.  III.     ^R.T.  8W.  III.      y  Imp.  K.B.  324. 
Vol.  II.  K 


730  OF  VIEWS. 

the  cause  is  to  be  tried  at  a  sitting  in  term,  the  defen- 
dant, by  obtaining  it,  may  put  off  the  trial,  till  the  sit- 
tings after  term,  it  not  being  usual  to  try  special  ju- 
ry causes  in  term-time ;  by  which  means,  the  plain- 
tiff  is  delayed  from  getting  judgment  till  the  next 
term,  which  may  be  at  the  distance  of  some  months. 
To  obviate  this  inconvenience,  it  might  be  proper  to 
make  the  defendant,  in  such  case,  undertake  to  give 
judgment,  of  the  term  in  which  the  cause  would 
otherwise  have  been  tried  ^. 

In  actions  oi  waste,  trespass  quare  clausum  fregit^ 
and  other  actions,  where  it  appears  to  the  court  to  be 
proper  and  necessary,  that  the  jurors,  whether  com- 
mon or  special,  who  are  to  try  the  issues,  should,  for 
the  better  understanding  of  the  evidence,  have  a  'oieijj 
of  the  messuages,  lands,  or  place  in  question,  the 
court  is  authorised  by  the  statute  4  Ann.  c.  16.  ^  8. 
*'  to  order  special  writs  of  distringas  or  habeas  cor- 
"  pora  to  issue,  by  which  the  sheriff,  or  other  officer 
"  to  whom  they  are  directed,  shall  be  commanded 

''  to 

^  In   the    Common    Pleas,  cause  to  be  tried  in  term,  un- 

when  delay  is  suggested  as  the  less  such  terms  are  submitted 

true  motive  for  the  application  to,  as  obviate  the  objection  ; 

for  a  special  jury,  and  this  is  and   giving  judgment   of  the 

not  satisfactorily  denied  on  the  term,  is  not  in  all  cases  satis- 

part  of  the  person   applying,  factory, 
the    chief-justice   directs    the 


OF  VIEWS.  731 

*'  to  have  six  out  of  the  first  twelve  of  the  jurors 
*'  named  in  such  writs,  or  some  gi-eater  number  of 
*'  them,  at  the  place  in  question,  some  convenient 
"  time  before  the  trial,  who  then  and  there  shall  have 
*'  the  matters  in  question  shewn  to  them,  by  two  per- 
"  sons  in  the  said  writs  named,  to  be  appointed  by 
"  the  court  =*;  and  the  said  sheriff  or  other  officer, 
*'  who  is  to  execute  the  said  writs,  shall,  by  a  special 
*'  return  upon  the  same,  certify  that  the  view  hath 
*'  been  had,  according  to  the  command  of  the  said 
"  writ,"  And  by  the  3  Geo.  II.  c.  25.  ^  14.  "where 
"  a  view  shall  be  allowed  in  any  cause,  in  such  case 
*'  six  of  the  jurors  named  in  such  panel,  or  more, 
"  who  shall  be  mutually  consented  to  by  the  parties, 
*'  or  their  agents  on  both  sides,  or  if  they  cannot  agree, 
"  shall  be  named  by  the  proper  officer  of  the  re- 
"  spective  courts  of  King's  Bench,  &:c.  for  the  causes 
"  in  their  respective  courts,  or  if  need  be,  by  a  judge 
"  of  the  respective  courts  where  the  cause  is  depend- 
*'  ing,  or  by  the  judge  or  judges  before  whom  the 
"  cause  shall  be  brought  on  to  trial  respectively,  shall 
"  have  the  view,  and  shall  be  first  sworn  upon  the 
"  jury  to  try  the  cause." 

Before  the  statute  4  Ann.  c.    16.  there  could  be 
no  view,  till  after  the  cause  had  been  brought  on 

to 

^^  Append.  Chap.  XXXV.  §  10,  &c. 


732  OF  VIEWS. 

to  trial;  when,  if  the  court  saw  the  question  involved 
in  any  obseurit}^  which  might  be  cleared  up  by  a 
view,  the  cause  was  put  off,  that  the  jurors  might 
have  a  view  before  it  came  on  again  ^.  Upon  this 
statute,  it  had  become  the  practice  to  grant  a  view  of 
course,  upon  the  motion  of  eitlier  party :  And  a  no- 
tion having  prevailed,  that  six  of  the  first  twelve  up- 
on the  panel  must  attend  upon  the  view,  and  appear 
at  the  trial,  and  that  if  they  did  not,  the  cause  must 
be  put  off,  the  judges  thought  it  their  duty  to  inter- 
fere, and  to  take  care  that  their  ordering  a  view  should 
not  obstruct  the  course  of  justice,  and  prevent  the 
cause  from  being  tried:  for  they  were  all  clearly  of 
opinion,  that  the  act  of  parliament  meant  that  a  view 
should  not  be  granted,  unless  the  court  were  satisfi- 
ed that  it  was  proper  and  necessary ;  and  they  thought 
it  better,  that  a  cause  should  be  tried  upon  a  view 
had  by  any  six,  or  by  fewer  than  six,  or  even  with- 
out any  view  at  all,  than  that  the  trial  should  be  de- 
layed for  a  great  length  of  time.  Accordingly 
they  resolved,  not  to  order  a  view  any  more, 
without  a  full  examination  into  the  propriety  and 
necessity  of  it,  unless  the  party  applying  would  come 
into  such  terms,  as  might  prevent  an  unfair  use  being 
made  of  it "".  Agreeabjy  to  this  resolution,  they  re- 
quired 

b  1  Bur  253.  2  Salk.  665.     c  i  Bur.  253. 


OF  VIEWS.  733 

quired  a  consent,  which  has  ever  since  been  made  a 
part  of  the  rule,  that  in  case  no  view  be  had,  or  if  a 
view  be  had  by  any  of  the  jurors,  though  not  six  of 
the  first  twelve,  yet  the  trial  shall  proceed,  and  no  ob- 
jection be  made  on  either  side,  on  account  thereof, 
or  for  want  of  a  proper  return  to  the  writ  '^. 

In  actions  of  waste,  and  trespass  quare  clausum 
fregit,  the  necessity  for  a  view  appearing  on  the  face 
of  the  pleadings,  the  motion  for  it  is  a  motion  of 
course,  requiring  only  counsel's  signature;  upon 
which  a  rule  of  court "  is  drawn  up  in  term-time,  or 
a  judge's  order  in  vacation.  But  in  other  cases,  a 
special  application  must  be  made  for  the  rule  or  or- 
der, to  the  court  or  a  judge,  upon  an  affidavit  of  the 
circumstances;  and  it  is  always  made  a  part  of  the 
rule  or  order,  that  the  expences  of  taking  the  view 
shall  be  equally  borne  by  both  parties,  and  that  no 
evidence  shall  be  given  on  either  side,  at  the  time  of 
taking  thereof  ^  Before  the  rule  or  order  is  drawn 
up,  an  application  should  be  made  to  the  opposite 
attorney,  for  the  name  of  his  shewer;  and  the  names 
of  both  shewers  must  be  inserted  in  the  rule  or  order, 
and  also  in  the  writ  of  distringas,  with  the  time  and 
place  of  meeting  for  proceeding  on  the  view.  The 

rule 

d  1  Bur.   257.  and  see  Ap-         §  8,  9. 
pend.  Chap.  XXXV.  §  8.  i  Id.  ibid. 

e  Append.  Chap.    XXXV. 


734  OF  EVIDENCE. 

rule  or  order  being  drawn  up,  a  copy  of  it  must  be 
served  on  the  opposite  attorney,  and  the  original  left 
ivith  the  sheriff,  together  with  the  names  of  the  jurors, 
if  special,  and  he  will  summon  them ;  if  common^  he 
will  summon  ^uch  as  he  thinks  proper. 


The  next  circumstance  to  be  attended  to  is  the 
E'Didence;  for  unless  the  parties  are  prepared  to 
prove  their  allegations,  it  is  needless  for  them  to 
go  to  trial :  And  herein,  there  are  two  things  to  be 
principally  considered  in  every  action,  first,  what 
is  to  be  proved;  and  secondly,  the  manner  of 
proving  it.  The  evidence,  in  all  cases,  is  governed 
by  the  pleadings ;  it  being  necessary  to  prove  every 
thing  that  is  put  in  issue,  and  no  more.  On  the 
general  issue,  the  plaintiff  must  prove  the  whole 
of  his  case;  but  on  a  special  issue,  it  is  only  neces- 
sary to  prove  the  particular  point  referred  to  the 
jury;  for  whatever  is  not  expressly  denied,  is  ad- 
mitted by  the  pleadings.  The  manner  of  proof 
depends  on  the  nature  of  the  evidence,  which  is 
written  or  unwritten  ^ :  the  former  is  of  a  public  or 
private  nature,  and  is  either  found  in  the  custody 
of  the  parties,  or  of  third  persons;  the  latter  arises 
from  the  testimony  of  witnesses.    In  general,   the 

parties 

?:  Gilb.  Evid.  5..   Bnl.  A7.  Pri.  221 


OF   WITNESSES.  /3n 

parties  must  come  prepared  with  the  best  existing 
evidence,  the  nature  of  the  case  admits  of;  and 
the  w^itnesses  must  be  such,  as  are  not  interested  in 
the  event  of  the  suit  ^.  But  when  an  objection  is  made 
to  a  witness,  that  admits  of  any  doubt,  the  courts,  of 
late  years,  have  endeavoured  as  far  as  possible,  con- 
sistently with  the  old  cases,  to  let  the  objection  go 
to  his  credity  rather  than  his  cornpetency  \ 

The  mode  of  procuring  the  attendance  of  wit- 
nesses, is  by  subpoena  ad  testificandum  ;  which  is  a 
judicial  writ,  commanding  them  to  appear  at  the 
trial,  to  testify  what  they  know  in  the  cause,  on 
the  part  of  the  plaintiff  or  defendant,  as  the  case 
is,  under  the  penalty  of  one  hundred  pounds  each  ^. 
Four  witnesses  only  can  be  put  in  one  writ  of  sub- 
pxna ' ;  and  therefore  it  is  frequently  necessary  to 
have  several  writs,  which  are  signed  and  sealed. 
And  if  a  cause  appointed  for  one  sitting  be  made 
a  remanct,  the  subpczna  must  be  re-sealed  and  re- 
served "\ 

If  a  witness  have  in  his  possession  any  deeds  or 
writings,  which  it  is  deemed  necessary  to  produce 
at  the  trial,  there  should  be  a  special  clause  inserted 

in 

•»  Cas.    temjj.   Hardw.    358.  §16. 

4  Burr.  2251.  3  T.  R.  27.  i  Cowp.  846. 

'  Same  cases;   1  T.  R.  300.  ">  Imp.  K.  B.  367. 
''  Append.  Chap.  XXXV, 


736 


OF  WITNESSES. 


in  the  subpoena,  called  a  duces  tecum,  commanding 
the  witness  to  bring  them  with  him " ;  or  if  deeds, 
&c.  are  in  possession  of  the  opposite  party,  his  at- 
torney or  agent,  a  notice  should  be  given  to  pro- 
duce them°:  And  even  in  penal  actions,  it  is  not 
necessary  to  give  the  notice  to  the  defendant  him- 
self; notice  to  his  attorney  or  agent  being  deemed 
.sufficient  p.  In  tronjer  for  a  bill  of  exchange,  the 
defendant  must  have  notice  to  produce  it,  or  the 
plaintiff  cannot  go  into  evidence  of  its  being  in  the 
defendant's  possession  '^.  And  the  giving  of  notice 
to  produce  deeds,  &c.  must  be  proved  at  the  trial, 
before  the  party   can  insist  on  the  production   of 

them: 


"  Append.  Chap.  XXXV. 
§  18.  But  under  a  subfixna 
duces  tecum^  a  witness  is  not 
compellable  to  produce  pri- 
vate papers  in  his  custody. 
1  Esp.  Cas.  .A^z.  Pri.  405. 

"  The  subpoena.,  with  a  clause 
of  c?uce.?  ;^cm77,and  a  n>ere  no- 
tice, ought  not  to  be  used  indif- 
ferently, as  if  both  were  calcu- 
lated to  answer  the  same  end. 
The  former  is  the  mandate  of 
the  court,  to  compel  a  witness 
to  produce  at  the  trial,  any 
written  evidence  he  may  be 
in  possession  of;  and  is  the 
regular  and  proper  process 
for  that  purpose :  But  a  notice 
would  be  only  a  call  upon  his 
candour,  to  produce  such  evi- 
dence; and  his  omitting  to  do 


so,  would  not  be  punishable  as 
a  contempt  of  the  court.  The 
use  o{2L  notice  is,  where  written 
evidence  is  in  the  hands  of  an 
adverse  party ;  in  which  case, 
though  he  is  not  perhaps,  in 
strictness  of  law,  bound  to 
produce  it  against  himself,  yet 
he  may  produce  it;  and 
therefore  the  party  who  wants 
it  cannot  be  permitted  to 
supply  its  place  by  the 
next  best  evidence,  nor  to 
observe  upon  a  refusal  to 
produce  it,  without  proving 
a  notice  to  the  adverse  party 
or  his  attorney,  having  first 
shewn  that  it  was  in  his  pos- 
session or  power. 

p  3  T.  R.  306. 

1  1  Esp.  Cas.  M.  Pri.  50. 


OF  WITNESSES.  737 

them:  It  is  not  sufficient  that  tlie  attorney  admits 
the  receipt  of  the  notice  ^  And  where  notice  has 
been  given  to  produce  books,  if  the  party  giving  it 
call  for  and  inspect  them,  it  does  not  make  them  evi- 
dence for  the  other  party,  to  whom  they  belong '. 

The  subposna  being  issued,  a  ticket  should  be 
made  out  for  each  witness  ',  and  personally  delivered 
to  him  ",  a  reasonable  time  before  the  day  of  trial ; 
for  witnesses  ought  to  have  a  convenient  time,  to 
put  their  own  affairs  in  such  order,  as  that  their  at- 
tendance upon  the  court  may  be  of  as  little  prejudice 
to  themselves  as  possible  '':  And  notice  in  London, 
at  two  in  the  afternoon,  for  the  witness  to  attend  the 
sittings  at  Wesiminster  that  evening,  has  been  held  to 
be  too  short.  Where  the  witness  lives  within  the 
weekly  bills  of  mortality,  it  is  usual  to  leave  a  shil- 
ling with  the  subpoena  ticket :  but  where  he  lives  at  a 
greater  distance,  he  is  not  obliged  to  attend,  unless 
his  reasonable  expences  are  paid  or  tendered  him,  not 
only  for  going  to,  but  also  for  returning  from  the 
trial;  and  where  less  is  offered,  the  witness  is  not 
obliged  to  trust  to  the  court's  allowing  him  more, 
when  he  comes  to  the  book,  for  perhaps  the  party 

may 

••  Esp.  Cas.  M.  Pri.  216.         §  17. 

'  Id.  210.  "2  Str.  1054. 

^  Append.   Chap.   XXXV.         v  i  str.  510. 

Vol.  II.  L 


738  OF  WITNESSES. 

may  not  call  him,  and  then  it  may  be  difficult  for 
him  to  get  home  again  '". 

If  the  witness,  not  having  a  sufficient  excuse, 
neglect  to  attend  upon  the  subpcena,  he  is  liable  to 
be  proceeded  against  three  ways;  first,  by  attach- 
ment, for  a  contempt  of  the  process  of  the  court  "^ ; 
secondly,  by  a  special  action  on  the  case  for  dama- 
ges, at  common  law  '';  and  thirdly,  by  action  on 
the  statute  5  Ellz.  c.  9.  \  12.  for  the  penalty  of  ten 
pounds,  and  also  for  the  further  recompence  given 
by  that  statute,  if  it  has  been  previously  assessed 
by  the  court  out  of  which  the  process  issued  ^  An 
attachment  lies  against  an  attorney  in  the  cause,  for 
not  attending  upon  a  subpoena,  to  give  evidence  of 
collateral  facts  "^;  and  it  may  be  even  had  against  a 
peer  of  the  realm  ^  But  in  order  to  ground  this 
summary  mode  of  proceeding,  it  is  necessary  to 
prove  that  the  witness  was  personally  served ",  and 
that  his  reasonable  expences  were  paid  or  tendered 
him  '.  The  motion  for  an  attachment  against  a 
person  subpcena'd  as  a  witness,  for  not  attending, 

should, 

w  2  Str.  1150.  1  Blac.  Rep.  1528.  S.  C.   Cowp.  845.  but 

36.  1  H.  Blac.  49.  see  3  Bur.  1687. 

'^   1   Str.   510.  2  Str.    810.        ^  Say.    Rep.    50.    1   Wils. 

1054. 1150.  Cowp.  386.  Doug.  332.  S.  C.  but  x;/a?e  a72/e,   170, 

561.  71. 

y  Doug.  561.  c  2  Str.  1054. 

•'»  Id.  ibid.  ^  Id.  115Q.  1  Blac.  Rep.  36 

a  2  Str.  810.  2  Ld.  Raym. 


OF  WITNESSES.  739 

should,  as  in  other  cases  of  contempt,  be  brought 
forward  as  soon  as  possible :  and  therefore  the  court 
refused  an  attachment  in  Hilary  term,  for  non-at- 
tendance at  the  preceding  summer  assizes,  and  left 
the  party  to  his  civil  remedy  *. 

When  the  witness  is  detained  in  prison,  a  habeas 
corpus  ad  testificandum  ^  is  necessary,  to  bring  him 
up;  for  which  an  application  is  made  to  the  court 
or  a  judge,  upon  an  affidavit^,  sworn  to  by  the 
party  applying'',  stating  that  he  is  a  material  wit- 
ness, and  willing  to  attend ".  Upon  this  applica- 
tion, the  court  in  their  discretion  will  make  a  rule, 
or  the  judge,  if  he  thinks  proper,  will  grant  his  fiat 
for  the  writ,  which  is  then  sued  out,  signed  and 
sealed.  But  a  habeas  corpus  ad  testificandum  will 
not  lie,  to  bring  up  a  prisoner  of  war " :  And  where 
the  application  for  it  appeared  to  be  a  mere  con- 
trivance, to  remove  a  prisoner  in  execution,  the 
court  refused  to  grant  it '.  The  writ  being  sued 
out,  should  be  left  with  the  sheriff,  or  other  officer 
in  whose  custody  the  witness  is  detained,  who  will 
bring  him  up,  on  being  paid  his  reasonable  charges  '. 

When 

e V.  St,  Leger,  H.  37  ^  Dous.419.;  and  see  6  T. 

G.  III.  R.  497.  7  T.  R.  745. 

f  Append.   Chap.   XXXV.  i  3  Bur.  1440. 

§21.  >"    1    Cromp.    248,    9.    Qu. 

E  Id.  ^  19.  whether  the  officer  may  not 

^  Fortes.  396.  require  an  indcmnitxj^  against 

'  Cowp.  672.  Per  Cur.  Hil.  the  prisoner's  escape?  /c/.  ibid. 

1780. 


740  OF  EXAMINING  WITNESSES 

When  a  material  witness  is  going,  or  resides 
abroad,  so  that  he  cannot  attend  at  the  trial,  the  par- 
ty requiring  his  testimony  may  move  the  court  in 
term-time,  or  apply  to  a  judge  in  vacation,  for  a  rule 
or  order  to  have  him  examined  on  interrogatories 
de  bene  esse,  before  one  of  the  judges  of  the  court, 
if  he  reside  in  town,  or  if  in  the  country  or  abroad, 
before  commissioners  specially  appointed,  and  ap- 
proved of  by  the  opposite  party ''.  The  rule  or  order 
for  this  purpose  cannot  be  obtained  without  consent; 
the  depositions  of  witnesses  upon  interrogatories  not 
being  the  best  existing  evidence  the  nature  of  the 
case  admits  of.  The  court  however  will  do  every 
thing  in  their  power  to  make  the  parties  consent, 
when  necessary ;  as  by  putting  oft'  the  trial,  at  the 
instance  of  the  defendant,  if  the  plaintift'  will  not 
consent":  And  if  the  defendant  refuse,  the  court 
will  not  give  him  judgment  as  in  case  of  a  nonsuit. 

The  application,  in  the  first  instance,  is  for  a 
rule  or  summons  to  shew  cause,  upon  an  affidavit 
stating  that  the  witness  is  material,  and  going  or 
resident  abroad:  which  being  consented  to,  the 
court  will  make  the  rule  absolute,  or  the  judge, 
an  order  upon  the  summons.  The  interrogatories 
should  be  then  prepared  p,  which  are  signed  by 
counsel,  and  ought  not  to  be  too  leading  :  this  done, 

a  copy 

''  I  Cromp.  229.  Pul.  210. 

"  Cowp.  174.  Doug.  419.  p  Append.  Chap.  XXXV\ 
sed  quxre;  and  see   1   Bo.s.  8c     §22,3. 


ON   INTERROGATORIES.  74i 

a  copy  of  the  interrogatories  is  given  to  the  opposite 
attorney,  with  notice  of  the  time  when  the  witness 
is  to  be  examined,  in  order  that  he  may  file  cross 
interrogatories  '^,  if  he  think  proper.  At  the  time  ap- 
pointed, the^  witness  is  taken,  together  with  the  inter 
rogatories,  to  the  judge's  chambers,  or  before  the 
commissioners  appointed  by  the  rule  or  order,  where 
he  is  examined;  and  his  depositions  being  sworn  to, 
copies  are  made  out,  and  deUvered  to  the  party  re- 
quiring them.  And  as  the  depositions  are  only  taken 
de  bene  esse,  they  cannot  be  made  use  of,  if  the  wit- 
ness should  happen  to  be  in  this  country,  at  the  time 
of  the  trial "".  The  party  succeeding  is  not  entitled  to 
the  costs  of  examining  witnesses  on  interrogatories, 
or  taking  office-copies  of  depositions ;  but  each  party 
pays  his  own  expence,  unless  it  be  otherwise  ex- 
pressed in  the  rule  ^ 

By  the  statute  13  Geo.  III.  c.  63.  \  44.  it  is 
enacted,  "  that  when  and  as  often  as  the  East-In- 
"  d'la  company,  or  any  person  or  persons,  shall 
''  commence  and  prosecute  any  action  or  suit,  in 
*'  law  or  equity,  for  which  cause  hath  arisen  in 
''  India,  against  any  other  person  or  persons,  in 
*'  any  of  his  majesty's  courts  at  Westminster,  it  shall 
"  and  may  be  lawful  for  such  court  respective. 

-    "ly 

H  Append.  Chap.  XXXV.  493.;  and  see  Bui.  M.  PH. 
§  24.  239. 

«•   2  Salk.   691.     12    Mod.         '  2  East,  259. 


742  OF  EXAMINING   WITNESSES,  &C. 

**  ly,  upon  motion  there  to  be  made,  to  provide  and 
**  award  such  writ  or  writs,  in  the  nature  of  a  man- 
*'  damns  or  commission,  as  therein  mentioned,  for 
*'  the  examination  of  witnesses;  and  such  examina- 
"  tion  being  duly  returned,  shall  be  allowed  and 
"  read,  and  shall  be  deemed  good  and  competent 
"  evidence,  at  any  trial  or  hearing  between  the  par- 
"  ties  in  such  cause  or  action.'*  These  writs  have 
been  accordingly  issued  in  several  cases  * ;  and  in  one 
of  them  ",  the  motion  being  made  on  the  last  day  of 
the  term,  the  court  awarded  such  a  writ,  even  before 
issue  joined. 

t  Mullick  V.  Luahington,  M.  Company^  M.  33  Geo.  III. 
26  G.    III.   East-India    Com-        «  Sfialding  v.  Mure,  T.  35 

pany  v.  Lord  Maiden^  E.  32  G.  III. 
G.   III.   Taylor  v,  East-India 

CHAP- 


[     743     ] 


CHAPTER  XXXVL 

Of  Arbitration. 

T^HE  record  of  nisi  prius  being  made  up  and 
passed,  the  jur)^-process  sued  out,  and  the  wit- 
nesses subpoena^ d^  the  cause  is  entered  for  trial.  And 
in  this  stage  of  the  proceedings,  or  more  frequently 
at  the  trial,  when  one  or  other  of  the  parties  is  com- 
monly fearful  of  the  event,  the  matter  in  dispute  is 
sometimes  referred  to  arbitration  ^. 

Arbitrations  are  of  two  kinds,  first,  where  there 
is  a  cause  depending  in  court,  and  secondly,  where 
no  cause  is  depending.  The  submission,  in  the 
former  case,  is  either  by  rule  of  court  before  the 
trial,  or  by  order  of  nisi  prius  at  the  trial '',  which  is 
afterwards  made  a  rule  of  court;  and  upon  a  sub- 
mission of  this  kind,  the  plaintiff  usually  takes  a 
verdict  for  his  security,  particularly  when  there  is 
special  bail,  who  would  not  otherwise  be  liable  for 
the  sum  awarded.  In  the  other  case,  the  submis- 
sion 

a  The  subject  of  arbitration  ment  of  the  parties,  to  refer 

is  not   necessarily  connected  them  to  the  decision  of  one  or 

with  a  suit  at  law,  as  it  fre-  more  indifferent  persons  as  ar- 

quently  exists,  where  no  suit  bitrators. 
is  depending ;  being  a  mode        •>  Append.  Chap.  XXXVI 

of  settling  disputes  by  agree-  §  1. 


744  OF  ARBITRATION. 

sion  is  by  agreement  of  the  parties,  which  is  either 
in  writing,  or  by  parol;  or  by  the  positive  direc- 
tions of  an  act  of  parliament,  as  in  the  case  of  in- 
closure  acts. 

References  made  by  rule  of  court  having  been 
found  to  contribute  much  to  the  ease  of  the  subject, 
in  the  determining  of  controversies,  the  parties  be- 
ing obliged  thereby  to  submit  to  the  award,  under 
the  penalty  of  imprisonment,  it  was  enacted,  by  the 
statute  9  and  10  W.  III.  c.  15.  \  1.  "  that  it  shall 
"  and  may  be  lawful  for  all  merchants  and  traders, 
"  and  others  desiring  to  end  any  controversy,  suit  or 
*'  quarrel,  for  which  there  is  no  other  remedy  but  by 
"  personal  action  or  suit  in  equity,  by  arbitration, 
"  to  agree  that  their  submission  of  their  suit  to  the 
"  award  or  umpirage  of  any  person  or  persons, 
"  should  be  made  a  rule  of  any  of  his  majesty's 
*'  courts  of  record,  which  the  parties  shall  choose, 
"  and  to  insert  such  their  agreement  in  their  submis- 
"  sion,  or  the  condition  of  the  bond"  or  promise, 
*'  whereby  they  oblige  themselves  respectively,  to 
' '  submit  to  the  award  or  umpirage  of  any  person  or 
*'  persons;  which  agreement  being  so  made,  and 
' '  inserted  in  their  submission  or  promise,  or  condi- 
*'  tion  of  their  respective  bonds,  shall  or  may,  upon 
"  producing  an  affidamt  thereof  made  by  the  wit- 
"  nesses  thereunto,  or  any  one  of  them,  in  the  court 

"  of 

-  Append,  Chap.  XXXVI.  §  2. 


OF  ARBITRATION.  745 

**  of  which  the  same  is  agreed  to  be  made  a  rule,  and 
"  reading  and  filing  the  said  affidavit  in  court,  be  en- 
'*  tered  of  record  in  such  court;  and  a  rule  shall 
**  thereupon  be  made  by  the  said  court,  that  the  par- 
*'  ties  shall  submit  to,  and  finally  be  concluded  by 
*'  the  arbitration  or  umpirage  which  shall  be  made 
"  concerning  them,  by  the  arbitrators  or  umpire, 
"  pursuant  to  such  submission;  and  in  case  of  dis- 
"  obedience  to  such  arbitration  or  umpirage,  the  party 
"  neglecting  or  refusing  to  perform  and  execute  the 
"  same,  or  any  part  thereof,  shall  be  subject  to  all 
"  the  penalties  of  contemning  a  rule  of  court,  when 
"  he  is  a  suitor  or  defendant  in  such  court,  and  the 
"  court  on  motion  shall  issue  process  accordingly; 
"  which  process  shall  not  be  stopped  or  delayed  in 
"  its  execution,  by  any  order,  rule,  command,  or 
*'  process  of  any  other  court,  either  of  law  or  equity, 
"  unless  it  shall  be  made  appear  on  oath  to  such 
*'  court,  that  the  arbitrators  or  umpire  misbehaved 
"  themselves,  and  that  such  award,  arbitration,  or 
"  umpirage  was  procured  by  corruption,  or  other 
'■*■  undue  means."  The  intent  of  this  act  was  to  put 
submissions,  where  no  cause  was  depending  in  court, 
upon  the  same  footing  with  those,  where  there  was  a 
cause  depending;  and  it  is  only  declaratory  of  what 
the  law  was  before,  in  the  latter  case  '^. 

This 

^  2  Bur.  701. 
Vol.  II.  M 


746  OF   ARBITRATION. 

This  statute  is  confined  to  the  submission  of  dis- 
putes of  a  chil  nature  :  Therefore  the  court  will  not 
make  a  submission  to  an  award  a  rule  of  court,  where 
part  of  the  matter  agreed  to  be  referred  has  been 
made  the  subject  of  an  indictment  ^.  And  a  parol 
submission  is  not  within  the  statute  ^;  nor  a  submis- 
sion in  wTiting,  unless  it  is  agreed  to  be  made  a  rule 
of  court:  But  where  there  is  such  an  agreement,  it 
seems  that  the  court  will  enforce  the  execution  of  a 
parol  award  by  attachment  °.  A  consent,  in  the  ar- 
bitration-bond, to  make  the  award  a  rule  of  court, 
instead  of  the  submission^  \\'\X\  it  seems  warrant  the 
interposition  of  the  court,  under  this  act  ^ :  And 
where  a  submission  was  by  bond,  and  at  the  end  of 
the  condition  there  was  this  clause;  And  if  the  obli- 
gor shall  consent^  that  this  submission  be  made  a  rule 
of  courts  that  thcn^  ^c.  the  court  on  motion  held 
these  conditional  words  to  be  a  sufficient  indication 
of  consent,  and  made  the  submission  a  rule  of  court  \ 
So  where  the  agreement,  to  make  the  submission 
a  rule  of  court,  was  no  part  of  the  condition,  but 
was  thereunder  written,  and  not  signed;  it  appear- 
ing by  affidavit,  that  the  subscription  was  made 
before  the  execution  of  the  bond,  it  was  taken  by 

*  the 

^  8  T.  R.  520.  Bos.  &  Pul.  444.  but   see   2 

'7  T.  R.  J.  Str.  1178.  contra, 

t  Barnes,  54.  i  1  Salk.  72.  \    Ld.  Raym. 

'■■^  Powell  \.  Philli/is,   E.   30  674.  S.  C 

G.  III.  3    East,  603.   K.  B.  2  ;* 


OF    ARBITRATION.  747 

the  court  to  be  part  of  the  condition,  as  an  in- 
dorsement by  way  of  defeazance  is  part  of  the 
deed;  and  the  submission  was  made  a  rule  of 
courts 

A  submission  to  arbitration,  by  iiile  of  court,  of 
all  matters  in  difference  between  the  parties  in  the 
cause y  is  not  confined  to  the  subject-matter  in  the  par- 
ticular action  then  depending ;  but  will  extend  to 
cross  demands  between  the  paities,  though  not  plead- 
ed by  way  of  set-off;  and  the  costs  being  to  abide 
the  event,  will  make  no  difference  ""r  But  a  reference 
of  all  matters  in  difference  in  tlie  cause  between  the 
parties^  is  confined  solely  to  the  matters  in  dispute 
in  that  particular  action.  A  submission  to  an  award 
having  been  made  a  rule  of  court,  between  A.  and  B. 
the  parties  on  the  record,  which  award  not  having 
been  made  in  time,  the  dispute  was  referred  to  a  se- 
cond arbitrator,  by  B.  and  C.  who  were  the  real  par- 
ties in  the  suit,  the  court  would  not  grant  an  attach- 
ment against  B.  for  not  obeying  the  award  made  by 
the  second  arbitrator,  because  the  reference  should 
have  been  made  by  the  parties  on  the  record;  and 
even  if  it  had,  there  should  have  been  another  rule, 
to  make  the  second  submission  a  rule  of  court:  And 
as  the  court  had  no  jurisdiction  in  this  case,  they  could 

not 

i  Barnes,  55.  »« 2  T.  R.  645. 


748  OF  ARBITRATION. 

not  go  into  the  merits,  though  B.  consented  to  waive 
the  objection '. 

It  was  formerly  holden,  that  a  reference  to  arbitra- 
tion was  an  implied  stay  of  proceedings  ".  But  in 
the  beginning  of  queen  Anne'^s  time,  a  rule  was  made, 
that  no  reference  whatsoever,  of  any  cause  depend- 
ing in  this  court,  should  stay  the  proceedings;  un- 
less it  was  expressed,  in  the  rule  of  reference,  to  be 
agreed,  that  all  proceedings  in  this  court  should  be 
stayed  ".  And  it  has  been  frequently  decided,  that  an 
agreement  to  refer  all  matters  in  difference  to  arbitra- 
tion, is  not  sufficient  to  oust  the  courts  of  law  or 
equity  of  their  jurisdiction  °. 

There  are  several  ways,  however,  in  which  the 
power  of  arbitrators  may  be  legally  determined;  as 
first,  by  the  death  of  the  parties  to  the  submis- 
sion '';  secondly,  by  the  arbitrators  not  making  an 
award,  within  the  time  limited;  thirdly,  by  their 
disagreement,  and  refusal  to  act  or  intermeddle  any- 
further,  or  by  their  appointing  an  umpire  to  act 
for  them'';  and  fourthly,  by  the  re'vocation  of  the 
parties :  Respecting  which  it  is  laid  douTi,  that  al- 
though a  man  be  bound  in  a  bond  to  stand  to  the 

arbitrament 

1  2  T.  R.  643.  q  1  Rol.  Abr.  261,  2.  1  Sid. 

»n  1  Mod.  24.  428.    2    Saund.     129.    1    Lev. 

n  2  Ld.  Raym.  789.  174.  285.  302.  3   Lev.  263.  2 

•  8  T.  R.  139.  Vent.  1 13.   1  Salk.  70,  71,  72. 
p  But  see  Barnes,  2 10. 


1 


OF  ARBITRATION.  749 

arbitrament  of  another,  yet  he  may  countermand  df 
revoke  the  power  of  the  arbitrator;  for  a  man  cannot, 
by  his  own  act,  make  an  authority,  power,  or  war- 
tant  not  countermandable,  which  by  the  law  and  of 
its  own  nature  may  be  countermanded  "^ :  But  by  this 
countermand,  or  revocation  of  the  power  of  the  ar- 
bitrator, the  bond  is  forfeited,  and  the  obligee  shall 
take  the  benefit  thereof  %  A  matter  was  referred  by 
consent  at  nisiprius,  to  the  three  foremen  of  the  jury, 
and  before  the  award  was  made,  one  of  the  parties 
served  the  arbitrators  with  a  subpoena  out  of  Chan- 
cery, which  hindered  their  proceeding  to  make  the 
award;  the  court  held  this  to  be  a  breach  of  the  rule, 
and  granted  an  attachment  nisi  \  So  where  the  par- 
ties, upon  a  reference,  consented  to  abide  by  the 
award,  and  not  to  bring  any  bill  in  equity,  and  their 
submission  was  made  a  rule  of  court,  and  after  an 
award  made,  one  of  them  filed  a  bill  in  Chancerv 
against  the  other,  the  court  made  a  rule  absolute  for 
an  attachment ". 

When  a  cause  is  referred  at  the  trial,  it  is  usual 
to  get  the  witnesses  sworn,  before  they  leave  the 
court;  otherwise  (if  required)  they  must  be  sworn 
before  a  judge :  And  the  order  of  nisi  prius  being 
obtained,  from  the  clerk  of  nisi  prius  in  London  or 

Middlesex^ 

'  8  Co.  82.  t  1  Salk.  73. 

s  Id.  ibid.  T.  Jon.  134.  «  3  Bur.  1256. 


750  OF  ARBITRATION. 

■Middlesex,  or  from  the  judge's  associate  at  the  as- 
sizes, the  arbitrator  will  make  an  appointment  in 
writing,  of  a  time  and  place  for  the  parties  and  their 
witnesses  to  attend  him ;  which  appointment  should 
be  subscribed  to  a  copy  of  the  order  ofnisiprius,  and 
served  therewith  on  the  defendant's  attorney.  And, 
previous  to  the  meeting,  the  arbitrators  should  be 
furnished  with  a  state  of  the  case,  and  the  names  of 
the  witnesses,  &.c.  A  similar  mode  of  proceeding  is 
to  be  observed,  where  the  reference  is  by  agreement 
without  suit. 

The  arbitration  then  proceeds :  And  it  has  been 
holden  that  arbitrators,  having  power  to  choose  an 
umpire,  may  elect  one  before  they  enter  upon  the  ex- 
amination of  the  matter  referred  to  them  ".  When 
a  cause  is  referred  to  three  persons,  and  they  or  any 
two  of  them  are  empowered  to  make  an  award, 
an  award  made  by  two  of  them  is  good,  if  the  third 
had  notice  of  the  meetings,  &c.;  but  otherwise, 
such  an  award  is  bad  '".  If  the  arbitrators  cannot 
make  their  award,  within  the  time  limited  by 
the  rule  of  court,  or  order  of  ?iisi  priuSy  a  rule  may 
be  obtained,  by  consent,  for  enlarging  it;  or 
where  the  submission  is  by  agreement  without 
suit,  the  time  may  be  enlarged  by  consent  of  the 

parties . 

V  2  T.  R.  644.  w  Willes,  215.  Barnes,  57.  S.  C 


OF  ARBITRATION.  75i 

parties.  But  where  the  submission  is  by  bond '', 
an  agreement  to  enlarge  the  time  for  making  an 
award,  must  contain  a  consent  that  it  shall  be  made 
a  rule  of  court;  otherwise  no  attachment  will  be 
granted,  for  not  performing  an  award  made  under 
it  y.  The  rule,  when  necessary,  is  drawn  up  by  the 
clerk  of  the  rules,  on  a  brief  or  motion-paper 
signed  by  the  counsel  on  both  sides,  and  a  copy  of 
it  served,  with  an  appointment  thereon;  but  be- 
fore this  rule  can  be  obtained,  a  motion  must  be 
made,  for  making  the  order  of  nisi  prius  or  agree- 
ment a  rule  of  court. 

It  will  next  be  proper  to  consider  the  award; 
and  the  mode  of  enforcing  it,  by  the  party  in  whose 
favour  it  is  made,  or  of  setting  it  aside,  by  the  op- 
posite party.  The  general  requisites  of  an  award 
are,  that  it  be  certain,  mutual,  and  final'':  But 
certainty  to  a  common  intent  is  sufficient  ^.  And 
an  award  may  be  good  in  part  and  bad  in  part, 
provided  the  latter  be  independent  of,  and  uncon- 
nected with  the  former^.  Though  the  award  be 
final,  as  to  all  matters  referred,  and  decided  upon 
by  the  arbitrators,  yet  upon  a  reference  of  all  mat- 
ters in  difference   between    the  parties,  an  award 

does 

"  fitter,  where  the  submis-  trament;  Kyd  on  Award;  and 

sion  is  by   ov(\tT  oi  nisi  firius .  I  Saund.  327  (2). 

Per  Cur.  E.41  G.  III.  ■'  1  Bur.  274.  and  see  7  T. 

VST.  R.  87.  R.  76. 

^See    Bac.   Abr.  tit.  Jrhi-  Ij  Willes.  62.  66.  25" 


752  '    OF  ARBITRATION. 

does  not  preclude  the  plaintiff  from  suing  for  a  cause 
of  action,  existing  against  the  defendant  at  the  time 
of  the  reference,  upon  proof  that  the  subject-matter 
of  such  action  was  not  laid  before  the  arbitrators,  nor 
included  in  the  matters  referred  ", 

Where  a  cause  is  depending,  the  submission  is 
either  silent  with  regard  to  costs,  or  they  are  directed 
to  abide  the  event  of  the  award,  or  else  to  be  in  the 
discretion  of  the  arbitrator.  The  power  of  awarding 
costs  is  necessarily  consequent  to  the  authority  con- 
ferred upon  the  arbitrator,  of  determining  the  cause; 
and  the  reason  why,  in  references  of  this  sort,  a  pro- 
vision is  frequently  inserted,  that  the  costs  shall  abide 
the  event  of  the  award,  is  that  the  arbitrator  may  not 
have  it  in  his  power  to  withhold  costs,  from  the  par- 
ty who  is  in  the  right :  But  that  is  to  be  considered 
as  the  restriction  of  a  power,  which  he  would  other- 
wise necessarily  have,  of  allowing  costs  at  his  elec- 
tion '^. 

Where  the  costs  are  directed  to  abide  the  e'uent, 
that  must  be  taken  to  mean  the  legal  event :  There- 
fore, where  an  action  of  trespass  was  brought 
for  pulling  down  the  plaintiff's  gates,  and  assault- 
ing him,  and  the  defendants  pleaded  not  guilty  to 
the  whole  declaration,  and  justified  as  to  all  the* 
counts  but  one,  under  different  rights  of  way;  and 

the 

^  4  T.  R.  146.  but  see  d  2  T.  R.  644,  5.  but  see 

Willes,  268.  7  Mod.  349.  Willes,  62, 

oct.  ed.  S.  C, 


OF   ARBITRATION.  755 

the  arbitrator  awarded  a  right  of  way  to  the  defend- 
ants, different  from  any  of  those  set  forth,  and  gave 
five  shillings  damages  to  the  plaintift'  for  the  assault, 
as  having  been  committed  when  the  defendants  were 
attempting  to  exercise  a  right  of  way,  negatived  by 
the  arbitrator;  the  court  held,  that  the  plaintiff  could 
recover  no  more  costs  than  damages,  the  award  of 
the  arbitrator  not  being  tantamount  to  a  judge's  cer- 
tificate, under  the  22  &  23  Car.  II.  c.  9.^  So  where 
a  cause  is  referred  to  arbitration,  and  the  costs  are  di- 
rected to  abide  the  event  of  the  suit,  the  plaintiff  is 
not  entitled  to  them,  if  it  appear  by  the  award,  that 
his  original  demand  was  under  forty  shillings,  and 
he  might  have  recovered  it  in  a  court  of  conscience  ^. 
If  a  cause  be  referred  to  arbitration,  under  an  order 
of  nisi  prius^  but  a  verdict  be  nevertheless  taken  for 
the  plaintiff,  for  a  certain  sum,  as  a  security  for  what 
shall  be  awarded  to  be  paid  to  him,  and  costs ,  the  ar- 
bitrator cannot  award  a  sum  to  be  paid  to  the  i^\i\\n- 
tiW  wit/iout  costs;  because,  by  the  terms  of  the  order, 
he  was  precluded  from  entering  at  all  into  the  ques- 
tion concerning  costs  ^. 

Where  the  costs  are  left  to  the  discretion  of  the 
arbitrator,  he  may  either  award  a  gross  su?n  to  be 

paid 

3  T.  R.  138.  H.  30  Geo.  III. 

f  Id.  139.  Waston  v.  Gibaon^        s  Say.  Costs,  177. 
Vol.  II.  N 


754  OF  ARBITRATION. 

paid  for  costs'';  or  he  may  award,  that  one  of  the 
parties  shall  pay  to  the  other,  costs  to  be  taxed  by  the 
master';  or  he  may  award  costs  generally^  in  which 
case  the  master  shall  tax  them  ''.  But  he  cannot  award, 
that  one  of  the  parties  shall  pay  to  the  other  such  costs 
as  two  persons  named  in  the  award,  but  not  officers  of 
the  court,  shall  appoint;  for  this  is  an  improper  dele- 
gation of  his  authority  '.  If  an  arbitrator  award  costs, 
to  be  taxed  by  the  master,  such  costs  shall  be  taxed 
as  between  party  and  part}^  and  not  as  between  at- 
torney and  client "" :  And  it  is  settled,  that  an  arbitra- 
tor cannot  award  any  other  than  the  common  costs,  as 
between  party  and  party,  unless  he  be  expressly  au- 
thorised so  to  do  ".  Where  a  submission  to  arbitra- 
tion is  under  an  order  of  nisiprius,  the  arbitrator  may 
award  costs,  subsequent  to  the  order;  but  whei'e  the 
submission  is  by  bond,  he  cannot  award  subsequent 
costs  °.  And  if  an  arbitrator  appointed  under  an 
order  of  nisi  prius,  only  aw  ard  costs  to  be  taxed  ge- 
nerally, 

''  Cas.  temfi.  llardw.  53.  P.  69,  70,  2  Blac.  Rep.  953. 

i  1  Salk.  75.  6   Mod.    195.         °  Pr.  Reg.  C.  P.  45.  Barnes, 

S.  C.  7  T.  R.  77.  58.  And  if  arbhrators  award 

k  2  Str.  737.  Say.  Rep.  240.  the  defendant  to  pay  the  plain- 
Barnes,  56.  58.  and  see  Hul-  tiff  his  costs  of  suit,  to  be  tax- 
lock  on  Costs,  418,  19.Willes,  ed  by  the  proper  officer  before 
62.  a  particular  day,  it  is  tl>e  busi- 

1  Cas.    teinji.    Hardw.    181.  v\it?>?>  oi  t\vi  defendaiit  to  have 

2  Str.  1025.  S.C.  tliem  taxed  before  that  day- 

'"  Cas.   tcm/i.   Hardw.    161.     Willes,  62. 

'>  Cowp.    127,  Cas.  Pr.  C. 


1 


OF   ARBITRATION.  755 

iierally,  the  costs  of  the  reference  ought  not  to  be  al- 
lowed on  the  taxation,  but  merely  the  costs  of  the 
suit  P :  Neither  will  an  award  that  one  party  shall  pay 
to  the  other,  the  costs  by  him  sustained  in  the  action, 
include  the  costs  of  the  reference  '^.  Where  the  cause 
goes  off  upon  an  ineffectual  arbitration,  and  is  after- 
wards tried,  costs  are  allo^ved  as  upon  a  remanet  \ 

The  mode  of  enforcing  an  award,  by  the  party  in 
whose  favour  it  is  made,  is  by  action,  or  when  the  sub- 
mission is  made  a  rule  of  court,  by  attachment ' ;  and 
if  a  lierclict  has  been  taken  for  the  plaintiff's  security, 
by  entering  up  judgment  thereon,  and  taking  out  exe- 
cution. Upon  a  submission  being  made  a  rule  of 
court,  it  was  formerly  holden,  that  the  party  might 
proceed  both  by  action  and  attachment  at  the  same 
time ' ;  but  a  different  doctrine  has  been  since  laid 
down ". 

Where  the  submission  is  by  deed  with  a  penalty, 
and  the  award  is  made  within  ihe  time  limited,  an 
action  of  debt  lies  upon  the  deed,  for  the  non-per- 
formance of  the  award;  and  that,  \^'hether  the 
award  be  for  the  payment  of  money,  or  the  per- 
formance 

p  Barnes,    123.  1   H.   Blac.  71.     131.    144.    1    H.     Blac. 

223.  I  Bos.  Ec  Pul.  34.  639. 

q  1  H.  Blac.  223.  «  1  Salk.  83. 

'  5  Bur.  2694.   Say.  Costs,         t  Id.  7:!,. 
179.    S.  C.    but    see    Doug.         "  Andr.     299.  Cas.     tcmii. 

437,  3  T.  R.   .507.  6  T.  R.  Harilw    106. 


756  OF   ARBITRATION. 

formance  of  a  collateral  act.  But  where  in  an  arbitra 
tion-bond,  a  time  was  limited  for  the  arbitrator  to 
make  his  award,  and  such  time  was  afterwards  en- 
larged by  mutual  consent,  it  was  held  that  no  action 
could  be  maintained  on  the  bond,  to  recover  the  pe- 
nalt}^  for  not  performing  the  award,  made  after  the 
time  first  limited  " :  In  such  case,  the  plaintiff  should 
have  proceeded  by  action  of  debt  or  assumpsit^  on  the  , 
submission  implied  in  the  agreement,  to  enlarge  the 
time.  An  action  of  debt  also  lies  upon  a  submission 
by  deed,  without  a  penalty,  or  upon  a  submission  in 
writing  Vv'ithout  deed,  or  by  parol,  where  the  award 
is.  for  the  payment  of  money;  but  where  it  is  for  the 
perlbrmance  of  a  collateral  act,  the  plaintiff  should 
proceed  by  action  of  coijenatit  upon  the  deed,  or  if 
the  submission  be  without  deed,  by  action  of  as- 
sinnpsit "''.  And  when  matters  in  dispute  are  refeiTed 
to  arbitration,  without  bond,  and  the  arbitrators 
award  a  certain  sum  to  be  due,  it  may  be  recover- 
ed under  a  coimt  on  an  insimul  comput assent ".  Two 
several  tenants  of  a  farm  agreed  with  the  succeed- 
ing tenant,  to  refer  certain  matters  in  difference  re- 
specting the  farm  to  arbitration,  and  jointly  and 
severally  promised  to  perform  the  award;  the  ar- 
bitrator awarded  each  of  the  two  to  pay  a  certain 
sum  to  the  third ;  and  the  court  held,  that  they  were 

jointly 

^3  T.  R.  592.  in  nods.  "  1  Esp.  Cas.   M.  Pri.  194. 

^  2  Ld.  Raym.  1040.  but  see  id.  377. 


OF  ARBITRATION.  757 

jointly  responsible  for  the  sum  awarded  to  be  paid 
by  each  ^. 

Where  the  submission  is  by  rule  of  court  origi- 
nally, or  by  order  of  nisi  prius  or  agreement,  whicl; 
is  afterwards  made  a  rule  of  court,  the  party  disobey- 
ing an  award  is  not  only  liable  to  an  action,  but  also 
to  an  attachment,  as  for  a  contempt  \  And  where  the 
original  award  was  lost,  the  court,  on  a  proper  affida- 
vit,  granted  an  attachment  upon  a  copy  of  it  ^.  Bui 
an  attachment  cannot  be  granted  against  a  peer  of  the 
realm,  or  member  of  the  house  of  commons,  for  non- 
payment of  money  pursuant  to  an  award  ''.  If  an  ar- 
bitrator award,  among  other  things  that  each  party 
shall  pay  a  moiety  of  the  costs  of  the  arbitration,  and 
of  making  the  submission  a  rule  of  court;  and  one 
party,  in  order  to  get  the  award  out  of  the  hands  of 
the  arbitrator,  pay  the  whole ;  it  seems  that  he  may 
have  an  attachment  against  the  other  party,  if  he  re- 
fuse to  pay  his  moiety  ". 

The  party  having  a  remedy  by  action  on  the 
award,  it  is  discretionary  in  the  court,  whether  or 
not  they  will  enforce  it  by  attachment.  And 
therefore,  where  there  was  a  contrariety  of  evi- 
dence, they  would  not  deterhiine  it  upon  affida- 
vits, 

y  7  T.  R.  352.  h  7  T.  R.   171.  448.  Jnte, 

'■  1  Salk.  83.  170,  71. 

^  1  Str.  526.  -  1  T^os.  &  Pul.  93. 


758  OF   ARBITRATION. 

vits,  in  a  summary  way  ^.  So  where  the  defendant 
was  a  bankrupt,  and  incapable  of  paying  the  sum 
awarded,  the  court  refused  an  attachment  for  non- 
payment of  it  '^ :  And  where  a  party  was  taken  upon 
an  attachment  for  not  performing  an  award,  after 
which  he  became  bankrupt  and  obtained  his  cer- 
tificate, the  court  ordered  him  to  be  discharged;  for 
this  was  a  demand  for  which  debi  would  lie,  and  the 
act  says,  he  shall  not  be  arrested, /^ro^'^'cz//*?^  or  im- 
pleaded  for  any  debt  due  before  the  bankruptcy :  It 
would  therefore  be  hard  to  keep  him  in  custody, 
when  the  duty  is  discharged  ^  A  kmt-sole  having 
agreed  to  a  reference,  was  awarded  to  deliver  up  two 
notes,  and  pay  a  sum  of  money ;  she  married,  and  the 
husband  refusing  to  pay,  it  was  doubted  if  the  court 
could  grant  an  attachment,  against  both  or  either  of 
them  ^. 

The  court  will  not  grant  an  attachment  against 
an  administrator,  for  not  performing  a  rule  of  court 
entered  into  by  the  intestate''.  And  a  submission 
to  arbitration  by  an  executor  or  administrator,  is  not 
of  itself  holden  to  be  an  admission  of  assets;  and 
therefore,  if  upon  such  a  submission,  the  arbitrator 
simply  awards  a  certain  sum  to  be  due  from  the  tes- 
tator 

•i  1  Str.  695.  g  Jnon.  1  Cromp.  270.  and 

•^  Anon.    K.    B.  1    Crotnp.     see  6  T.  R.  161. 
'270.  ^  Willes,  315. 

f  2  Str.  1152. 


OF   ARBITRATION.  759 

tator  or  intestate's  estate,  without  saying  by  whom  it 
is  to  be  paid,  the  executor  or  administrator  is  not 
personally  liable  to  the  payment  ol"  the  sum  awaided, 
nor  can  be  attached  for  the  non-payment  of  it '.  But 
a  submission  to  arbitration  by  an  executor  or  admi- 
nistrator, is  considered  as  a  reference  not  only  of  the 
cause  of  action,  but  also  of  the  question,  whether  or 
not  he  has  assets:  And  therefore  if  an  arbitrator,  un- 
der a  reference  between  A.  and  B.  administrator 
award  that  B.  shall  pay  a  certain  sum  as  the  amount 
of  A.'s  demand,  B.  cannot  afterwards  object  that  he 
had  no  assets;  for  this  is  equivalent  to  determining, 
as  between  these  parties,  that  he  had,  and  therefore  he 
may  be  attached  for  non-payment ''.  A  foreign  at- 
tachment in  London,  if  properly  pleaded,  is  a  good 
bar  to  an  action  on  an  award  ',  or  on  a  bond  condi- 
tioned for  its  performance  '";  but  where  the  submission 
is  made  a  rule  of  court,  it  is  no  answer  to  an  attach- 
ment in  this  court,  for  non-payment  of  the  sum 
awarded ". 

Before  any  application  is   made   for   an  attach- 
ment, or  to  set  aside  an  award",   the  submission 

must 

i  5  T.  R.  6.  And  trustees,  i   1  Sid.  327. 

by  submiting  matters    to   ar-  f"  1  Ld.  Raym.  636.  3  Salk. 

bitration,  do  not  make  them-  49.  S.C. 

selves  personally  liable.  3  Esp.  ^^  Grant,  v.  Hwuxiing,  4   T. 

Cas.A7.iV/.  101.  R.  313.   in  notis.    1    Cromp 

k  7   T.   R.    453.    and    see  270. 

1  T.  R.  691.  «  ?  Str.  1178. 


760  OF   ARBITRATION.  "" 

must  be  made  a  rule  of  court,  if  not  one  already; 
which  is  done  on  an  affidavit,  by  one  of  the  wit- 
nesses, of  the  due  execution  of  the  bond,  or  agree- 
ment containing  the  submission  p;  and  if  he  refuse  to 
make  it,  the  court  will  compel  him  '^.  But  where  a 
matter  is  referred  to  arbitrators,  by  rule  of  court, 
and  they  make  their  award,  the  court  will  compel  a 
performance  of  it,  as  much  as  if  the  award  were  part 
of  the  rule ;  so  that  a  new  rule  is  needless  ^ 

In  order  to  proceed  by  attachment,  there  must  be 
personal  notice  of  the  award,  and  a  demand  of  the 
money,  or  other  thing  awaided*;  which  demand 
may  be  made  by  the  party  himself,  or  by  a  third  per- 
son under  a  power  of  attorney.  And  at  the  time  of 
demanding  it,  a  copy  of  the  rule  must  be  served  up- 
on the  opposite  party,  and  of  the  master's  allocatur 
thereon,  if  the  demand  be  of  taxed  costs,  and  also  a 
copy  of  the  award,  and  of  the  power  of  attoiTiey,  if  the 
demand  be  made  by  a  third  person  "^ ;  the  original  rule 
and  allocatur^  and  also  the  award  and  power  of  attor- 
ney, when  required,  being  at  the  same  time  produced 
and  shewn.  After  a  demand  and  refusal,  the  court 

upon 

p  Append.  Chap.  XXXVI.  312.  Per  lord  Kenyan,  E.  35 

53.  G.  III.  1  Bos.  &  Pul.  394. 

1  1  Str.  1.  Barnes,  58,  ^  Per  lord   Ke?tuon,  H.  38 

^  1  Salk.  71.  Geo.  III. 

-  Id.    83.     12     Mod.     257. 


OF   ARBITRATION.  761 

Upon  an  affidavit  of  the  due  execution  ot"  the  award  ^, 
and  power  of  attorney,  and  another  of  the  service  of 
a  copy  of  the  rule,  and  of  the  demand  and  refusal, 
&.C. "'  will  grant  a  rule  for  an  attachment  ?iisiy  which 
they  will  afterwards  make  absolute,  on  an  affidavit  of 
service,  if  no  sufficient  cause  be  shewn  to  the  con- 
trary. Where  a  submission  to  an  award  is  made  a 
rule  of  court  under  the  statute,  there  being  no  action, 
the  affidavit  upon  which  to  apply  for  an  attachment, 
for  disobeying  the  award,  need  not  be  intitled  in  any 
cause  ;  but  the  affidavits  in  answer  must "" :  And  if 
an  affidavit  be  put  into  court,  without  any  title,  the 
court  cannot  take  notice  of  it,  though  the  adverse 
party  is  willing  to  waive  the  objection  • .  The  affir- 
mation of  a  ^laker  has  been  holden  not  sufficient  to 
ground  an  attachment,  for  the  non-performance  of 
award  ^ 

Where  a  cause  is  referred  at  the  trial,  and  a  ver- 
dict taken  for  the  plaintiff's  security,  and  an  award  is 
afterwards  made  in  his  favour,  the  plaintifi"  ma}'  make 

his 

^  Append.  Chap.  XXXVI.  Potvel  v.  Ward^  cited  in  Andr. 

§  4.  200.  and  Taylor  v.  Scott,  cited 

^v/rf.  §5,  6.  in  Cowp.   394.    1  T.  R.  266. 

=^  3  T.  R.   601.    Ante,  451.  and  the  several  cases  referred 

y  2  T.  R.  643.  to  by  Mr.  Dumford,  in  a  very 

2  1   Str.   441.  Willes,   291.  copious  note  on  Willes,  292. 

S.  P.    but  see   the   eases   of  scmb.  centra. 

Vol.  II.  O 


762  OF  ARBITRATION. 

his  election,  either  to  proceed  on  the  award,  by  ac- 
tion or  attachment,  or  on  the  verdict;  and  in  the  lat- 
ter case,  the  plaintiff  is  entitled  to  sign  judgment, 
and  take  out  execution  for  the  money  awarded, 
without  first  applying  to  the  court  for  leave  ^.  If  in 
such  case  the  award  be  made  before  the  term,  the 
dctendciut  in  the  common  pleas  can  only  impeach  it 
within  the  four  first  days  of  term :  And  personal  ser- 
vice of  the  award  is  not  necessary  to  warrant  the 
issuing  of  execution,  if  the  attorney  of  the  defendant 
has  been  served  with  a  copy  of  the  award.* 

The  mode  of  setting  aside  an  award  is  by  applica- 
tion to  the  court,  founded  on  some  objection  to  its 
legality,  appearing  on  the  face  of  the  award  itself,  or 
from  the  reasons  given  by  the  arbitrators  in  support 
of  it  ';  or  else  on  an  afiidavit  of  some  irregularity,  as 
want  of  notice  of  the  meeting  '^,  or  collusion  or  gross 
misbehaviour  of  the  arbitrators  '^ :  And  upon  such  an 
apjDiication,  if  made  in  due  time,  every  ground  of 
relief  in  equity,  against  an  award,  is  equally  open  in 
tills  court ".  The  usual  practice  is,  to  oblige  the  par- 
ty who  complains  of  the  award,  to  move  to  set  it 
aside,  unless  the  objections  appear  on  the  face  of  it; 
and  then  both  rules  come  on  together:  This  gives 
the  other  side  an  opportunity  of  answering  the  alle- 
gations, on  which  the  objections  to  the  award  are 
founded.  But  the  court  on  motion  will  not  enter  into 
the  merits  at  large;  for  if  they  did,  no  person,  it  is 
said,  would  ever  undertake  to  be  an  arbitrator  ^.  And 

they 

a  1    East,    401.      I   Bos.    £c  529. 

Pul.  97.480.  SBos.&cPul.  244.  d  3  Atk.  529.  2  Bur.  701, 

but  see  1  Salk.  8  ;.  Barnes,  58.  «=  3  Bur.  1258,  9. 

contra.  f  1  Salk.  71.    1  Str.  301.    3 

b  3  East,  18.  Atk.  529.  2  Bur.  701. 

c  1  Salk.  7 1.  but  see  3  Atk.  *  3  Bos.  &  Pul.  244. 


OF   ARBITRATION.  763 

they  will  not  set  aside  the  award  of  an  umpire,  because 
he  received  evidence  from  the  arbitrators,  without 
examining  the  witnesses,  unless  he  were  required  to 
re-examine  them,  before  the  making  of  his  umpi- 
rage 5.  If  an  award  be  made  on  an  improper  stamp, 
and  no  application  be  made  to  enforce  the  award,  the 
court  will  not  set  it  aside "":  And  if  an  objection  to 
the  stamp  be  not  alleged,  as  a  ground  for  obtaining 
a  rule  to  shew  cause  to  set  aside  an  award,  the  court 
will  not  suffer  it  to  be  relied  upon  afterwards,  when 
cause  is  shewn '.  On  a  motion  respecting  an  award  of 
commissioners,  under  an  inclosure  act,  the  court 
said:  *'  We  may  punish  upon  this,  if  there  be  any 
corruption;  or  enforce  its  execution  by  mandamus: 
But  we  are  not  to  interpret  or  set  aside  these  awards, 
upon  complaint  of  their  obscurity  \  &.c." 

By  the  statute  9  &  10  ^.  III.  c.  15.  §  2.  "  any 
*'  arbitration  or  umpirage,  procured  by  corruption  or 
"  undue  means,  shall  be  judged  and  esteemed  void 
"  and  of  none  effect,  and  accordingly  be  set  asidt*  by 
**  any  court  of  law  or  equity,  so  as  complaint  of  such 
"  corruption  or  undue  practice  be  made,  in  the  court 
"  where  the  rule  is  made  for  submission  to  such 
"  arbitration  or  umpirage,  before  the  last  day  of  the 

"  next 

g  4  T.  R.   589.    And  see   1  38  G.  III. 
Bos.  &  Pul.  9 1 .  175.  k  OvtT'Kdlet  Inclosure  Act, 

''7TR.95.  H.  38  Geo.  III. 
*  Liddell    v.    Johns toncy    H. 


764  or    ARBITRATIOK. 

"  next  term  after  such  arbitration  or  umpirage  made 
*'  and  published  to  the  parties'."  And  where  the 
appHcation  is  to  refer  back  an  award  to  the  same  ar- 
bitrator to  reconsider  it,  on  the  ground  that  he  had 
not  sufficient  materials  before  him,  it  must  be  made 
within  the  same  time ;  although  the  arbitrator  be  not 
charged  with  corruption  or  undue  practice  °\  But 
the  9  &  10  W.  III.  c.  15.  \  2.  which  limits  the  time 
of  complaining  against  awards,  to  the  last  day  of  the 
next  term  after  the  award  made,  extends  not  to  such 
as  are  made  in  pursuance  of  an  order  of  nisi  pr'ius^ 
but  only  where  the  submission  is  by  obligation  ". 

The  court  will  not  set  aside  an  a^  ard,  though  for 
defects  appearing  on  the  face  of  it,  after  the  expira- 
tion of  the  time  limited  by  the  statute  ° :  And  a  party 
cannot,  in  shewing  cause  against  an  attachment,  im- 
peach die  award  for  any  extrinsic  matter  p.  But  upon 
an  application  for  an  attachment,  for  non-perform- 
ance of  an  award,  it  is  competent  to  the  parties  to 
object  to  the  award,  for  any  illegality  apparent  on  the 
face  of  it,  although  the  time  limited  by  the  statute, 
for  applying  to  the  court  to  set  aside  the  award,  is 
expired  '^ :   The  reason  is,  tliat  upon  a  motion  for  an 

attachment, 

'  Co\vp.  23.     Barnes,  55.  Barnes,  55. 

m  2  T.  R.  781.  p  6  T.  R.  161. 

"  1  Str.  301.  2  Bur.  701.  q  7  T.  R.  73.  and  see  Barnes, 

o  Per  Powell,   Just.     Andr.  57. 
i97.     1   East,   276.    and   see 


OF  ARBITRATION.  765 

attachment,  the  party  would  be  without  remedy,  if 
the  attachment  were  granted,  notwithstanding  the 
illegality  of  the  award ;  whereas  if  the  party  were  left 
to  his  remedy,  by  bringing  his  action  on  the  award, 
it  would  be  competent  to  the  defendant  to  take  advan- 
tage of  any  illegality  appearing  upon  the  face  of  it  "■. 
The  court,  we  may  remember,  will  not,  on  the  last 
day  of  term,  hear  a  motion  for  a  rule  nisi  to  set  aside 
an  award  *;  nor  can  counsel  be  heard  on  that  day,  to 
shew  cause  against  such  a  rule,  but  the  same  must 
be  enlarged,  and  made  peremptory  for  the  next  ensu- 
ing term '. 

«■  1  East,  277,  B.fier  Lawrence,  J.     s  Jnte,  452. 

CHAP- 


[     766     ] 


CHAPTER  XXXVII. 

0/^Trials  ^^Ad"  Country,  and  their  In  cibents. 

''  I  TRIALS  by  the  country  are  at  bar,  or  nisi  prius. 
-*-  Before  the  statute  JVestm.  2.  (13  Ed.  I.)  c.  30. 
civil  causes  were  tried  either  at  the  bar,  before  all  the 
judges  of  the  court,  in  term-time;  or  when  of  no 
great  moment,  before  the  justices  in  Eyre:  a  practice 
having  very  early  obtained,  of  continuing  the  cause 
from  term  to  term,  in  the  court  above,  provided  the 
justices  in  Eyre  did  not  previously  come  into  the 
county  where  the  cause  of  action  arose;  and  if  it 
happened  that  they  arrived  there  within  that  interval, 
then  the  cause  was  removed  from  the  jurisdiction  of 
the  justices  at  Westminster,  to  that  of  the  justices  in 
Eyre  ^.  Afterwards,  when  the  justices  in  Eyre  were 
superseded,  by  the  modern  justices  of  assize,  it  was 
enacted,  by  the  above  statute,  "  that  inquisitions  to 
*'  be  taken  of  trespasses,  pleaded  before  the  justices 
"  of  either  be?ich  ^  shall  be  determined  before  the 
*'  justices  of  assize,  unless  the  trespass  be  so  heinous, 

"  that 

^  3  Blac.  Com.  352.  the   Exchequer,    to  be  tried 
b   This   statute,    extending  in  the  country,  there  is  a  par- 
only  to  the  courts  of  King's  ticular    commission,    autho- 
Bench    and    Common   Pleas,  rising  the  judges  of  assize  to 
whenever  an  issue  is  joined  in  try  it.    Bui.  M.  Fri.  304. 


OF   TRIALS  AT  BAR.  767 

"  that  it  requires  great  examination;  and  that  inqui- 
"  sitions  of  other  pleas,  pleaded  in  either  bench, 
*'  wherein  the  examination  is  easy,  shall  be  also  de- 
*'  termined  before  them;  as  when  the  entry  or  seisin 
"  of  any  one  is  denied,  or  in  case  a  single  point  is  to 
*'  be  inquired  into:  But  inquisitions  of  many  and 
*'  weighty  matters,  which  require  great  examination, 
*'  shall  be  taken  before  the  justices  of  the  benches  % 
*'  &c. ;  and  when  such  inquests  are  taken,  they  shall 
*'  be  returned  into  the  benches,  and  there  judgment 
*'  shall  be  given,  and  they  shall  be  enrolled."  Since 
the  making  of  this  statute,  causes  in  general  are  tried 
at  Tiisi  prius;  trials  at  bar  being  only  allowed  in  causes 
which  require  great  examination  '^. 

When  the  crown  is  immediately  concerned,  the 
Attorney -General  has  a  right  to  demand  a  trial  at 
bar  ^.  In  all  other  cases,  it  is  entirely  in  the  discre- 
tion of  the  court  ^,  governed  by  the  circumstances  of 
the  case  ^ :  Even  if  the  parties  consent,  such  a  mode 
of  trial  cannot  be  had,  without  leave  of  the  court  ^. 
The  grounds  on  which  this  trial  ought  to  be  granted, 
are  the  great  value  of  the  subject-matter  in  question, 
the  probable  length  of  the  inquiry,  and  the  likelihood 

that 

<:  2  Salk.  648.  f  1  T.  R.  367. 

d  1  Str.  52.  644.  2  Str.  816.  f>  2  Lil.  P.  R.   608.     1   Str. 

1  Barnard.  K.  B.  88.  S.C-  696, 
<:  Say.  Rep.  79. 


768  OF  TRIALS  AT  BAR. 

that  difficulties  may  arise  in  the  course  of  it  ^,  In 
ejectment,  it  is  said,  the  rule  has  been  not  to  allow  a 
trial  at  bar,  except  where  the  yearly  value  of  the  land 
is  one  hundred  pounds';  and  value  alone J,  or  the 
probable  length  of  the  inquiry,  is  not  a  sufficient 
ground  for  it:  But  difficulty  must  concur;  and  in 
order  to  obtain  it  upon  that  ground,  it  is  not  sufficient 
to  say  generally,  in  an  affidavit,  that  the  cause  is  ex- 
pected to  be  difficult;  but  the  particular  difficulty, 
which  is  expected  to  arise,  ought  to  be  pointed  out, 
tliat  the  court  may  judge  whether  it  be  sufficient ''. 
And  in  a  late  instance,  the  court  refused  a  trial  at 
bar,  on  the  mere  allegation  of  length,  and  proba- 
ble questions  of  difficulty,  in  a  cause  respecting  a 
pedigree  ^ 

If  one  of  the  justices  of  either  bench,  or  a  master 
in  Chancery,  be  concerned,  it  is  a  good  cause  for  a 
trial  at  bar,  be  the  value  what  it  may '" :  And  it 
is  said,  that  such  trial  was  never  denied  to  any 
officer  of  the  court,  nor  hardly  to  any  gentleman 
at  the  bai' ".  The  plaintiff  may  have  a  trial  of  this 
nature,  by  the  favour  of  the  court,  though  he  sue 
in  forma  pauperis  °:  but  where  the  plaintiff  is  poor, 

the 

^  Per  Kenyon^    arg.  Doug.  '    JDoe    ex   deyn.    Angell    v 

437.  and  see  1  T.  R.  363.  Jngell,  T.  36  G.  III. 

■•  1  Barnard.  K.  B.  141.  but  ■"  1  Sid.  407. 

see  1  Str.  479.  "  2  Salk.  651.    6  Mod.  123. 

J  2  Salk.  648.  S.  C.    but   see   2   Lil.  P.   R. 

kSay.Rep.79.  and  see  2  Lil.  608. 

P.  R.  604.   1  Barnard.  K.  B.  «  12  Mod,  318. 
141. 


OV  TRIALS   AT  BAR. 


769 


the  court  will  not  grant  it  to  the  defendant,  unless  he 
will  agree  to  take  nisi  prius  costs,  if  he  succeed,  and 
if  he  fail,  to  pay  bar  costs  ''.  In  London,  it  is  said,  a 
cause  cannot  be  tried  at  bar,  by  reason  of  the  charter 
of  the  citizens,  which  exempts  them  from  serving 
upon  juries  out  of  the  city  '^.  And  where  the  cause 
of  action  arises  in  a  county -pa/atine,  it  has  been 
doubted  whether  this  court  can  compel  the  inhabi- 
tants of  the  palatinate  to  attend  as  jurors  "■. 

A  trial  at  bar  is  never  granted  before  issue  joined  % 
except  in  ejectment;  in  which,  as  issue  is  very 
seldom  joined  till  the  term  is  over,  it  would  after- 
wards be  too  late  to  make  the  application  \  This 
sort  of  trial  should  regularly  be  moved  for,  in  the 
term  preceding  that  in  which  it  is  intended  to  be 
had;  as  in  Hilary  for  Easter^  and  in  Trinity  for 
Michaelmas  tenn  ",  except  where  lands  lie  in  Mid- 
dlesex "" :  and  it  is  never  allowed  in  an  issuable  term  '", 

unless 


P2  Salk.     648.  Doug.  421. 
but  see  2  Barnard.  K.  B.  146. 

1  2  Lil.  P.  R.  607.  2  Salk. 
644.  But  notCy  the  great  cause 
oiLockyer  against  the  East  In- 
dia Comfmny  was  tried  at  bar, 
(M.  2  Geo.  III.')  by  a  special 
jury  of  merchants  of  London. 
2  Salk.  644.  1  T.  R.  366.  In 
that  case  however,  the  jury 
consented  to  be  sworn,  and 
waive  their  privilege.  2  Wils. 
136. 

r  Say.  Rep.  47.  and  see  1 
1 .  R.  363. 

Vol.  II.  I 


s  2  Lil.  P.  R.  238.  608.  12 
Mod.  331.  1  Str.  696.  2  Bar- 
nard.  K.  B.  125.  IT.  R.  364, 
in  notis. 

t  Say.  Rep.  155. 

"  2  Lil.  P.  R.  603.  611. 

V  2  Salk.  649. 

^v  Fitzgib.  267.  Per  Buller 
Just,  in  Colemanv.  City  of  Lon- 
don, M.  21  Geo.  III.  But  the 
case  of  Goodiitle  ex  dern.  Re- 
vett  v.  Brafiam,  (4  T.  R.  497.) 
was  tried  at  bar,  in  Hillary 
term,  32  G.  III. 


770  OF   TRIALS  AT  BAR. 

unless  the  crown  be  concerned  in  interest  ^,  or  under 
very  particular  and  pressing  circumstances^.  In 
Easter  term,  they  did  not  formerly  allow  more  than 
ten  trials  at  bar  ^ ;  and  they  must  have  been  brought 
on,  a  fortnight  at  least  before  the  end  of  it  ^,  to  allow 
sufficient  time  for  the  other  business  of  the  court. 

Anciently,  there  was  no  other  notice  given  of  such 
trial,  than  the  rule  in  the  office;  but  now  it  is  said, 
there  must  be  fifteen  days  notice  ^.  The  plaintiff  how- 
ever, as  in  other  cases,  may  countermand  his  notice, 
and  prevent  the  cause  from  being  tried  at  the  day  ap- 
pointed; after  which,  it  cannot  be  brought  to  trial 
again,  unless  some  new  day  be  appointed  by  the 
court  '^ :  And  it  is  said,  that  a  second  rule  cannot  be 
made  for  a  trial  at  bar,  between  the  same  parties,  in 
the  same  term  ^.  Previous  to  giving  notice,  the  day 
appointed  for  the  trial  must  be  entered  with  the  clerk 
of  the  papers  ^;  and  it  could  not  formerly  have  been 
on  a  Saturday  \  or  the  last  paper-day  in  term,  except 
in  the  king's  case  ^. 

A  trial 

"  2  Lil.  p.  R.  603.  R.  IVI.  4  that  now   there  must  be  the 

Ann.  (c).  1  Str.  52.  same  notice  of  trials  at  bar  as 

y  2  Lil.  P.  R.    615.   1  Str.  in  other  cases. 
52.   1  Barnard.  K.  B.  370.  <^  R.  M.  4Ann  .  (c). 

2  2  Lil.  P.  R.  607.  ^  Fitzgib.  267. 

^Id.  609.  <^  2  Lil.  P.  R.  608. 

b  Append.  Chap.  XXXIV.         f/rf.  602. 
§5.2  Salk.  649.  but  see  Imp.         g  2  Salk.  625 
K.  B.  353.  where  it  is   said, 


OF  TRIALS  AT  BAR.  771 

A  trial  at  bar  is  had  upon  the  'uenire  facias  or  dis- 
tringas, &c.  as  at  common  law,  without  any  clause 
oi  nisi  prius ;  and  it  is  mostly  by  a  special  jury  of  the 
county  where  the  action  is  laid ''.  Six  days  notice  at 
least  ought  to  be  given  to  the  jurors  before  the  trial '; 
and  if  a  sufficient  number  do  not  attend  to  make  a 
jury,  the  trial  must  be  adjourned,  and  a  dece?7i  or  octo 
tales  awarded,  as  at  common  law  ^ ;  for  the  parties  in 
this  case  cannot  pray  a  tales  upon  the  statutes  ^  And 
no  ^vrit  of  alias  or  pluries  clistri?igas,  with  a  tales ,  for 
the  trial  of  an  issue  at  bar,  shall  be  sued  out,  before 
the  precedent  writ  of  distringas,  with  a  panel  of  the 
names  of  the  jurors  annexed,  shall  be  delivered  to  the 
secondary  of  this  court,  to  the  intent  that  the  issues 
forfeited  by  the  jurors,  for  not  appearing  upon  the 
precedent  writ,  may  be  duly  estreated '".  After  a  trial 
at  bar,  if  either  party  be  dissatisfied  with  the  verdict, 
he  may  move  for  a  new  trial,  as  in  other  cases  ". 

Trials 

h  2  Lil.   P.  R.  123.    1  Salk.  ^  5  T.  R.  457,  8.  462. 

405.  R.  T.  8    W.   III.  1  Bur.  >  35  Hen.  VIII.  c.  6.  4  £c 

292.  but  see  Doug. 438.  where  5  Ph.  &  M.  c.  7.  5  El.  c.  25. 

the  trial  was  had,  by  consent,  14  El.  c.  9,  7  &  8  W.   III.  c. 

by  a  jury  of  a  different  county ;  32.  §  3. 

and  in  Wales  or  Berwick  \x\ion  ■"  R.  H.*15   Car.  II.  2    Lil. 

Tweed,  Sec.  or   where    an  im-  P.  R.  123. 

partial  trial  cannot  be  had,  the  ■  Sty.  Rep.  462.  466.  2  Ld. 

jury  must  come  from  the  next  Raym.  1358.  I  Str.  584.  S.  C. 

English  or  adjoining  county.  2  Str.  110".  1  Bur.  395.  S.  P. 

»  Say.  Rep.  30. 


772         OF  TRIALS  AT  NISI  PRIUS. 

Trials  at  nisiprius  are  always  had  in  the  county  where 
the  venue  is  laid,  and  where  the  fact  w^as,  or  is  sup- 
posed to  have  been  committed  °;  except  where  the 
venue  is  laid  in  fVaks,  or  Berwick  upon  Tweed '',  &c 
or  in  a  county  where  an  impartial  trial  cannot  be  had, 
in  which  cases  the  cause  shall  be  tried  in  the  next 
English  or  adjoining  county  '^. 

The  parties  being  prepared,  and  ready  to  proceed 
to  trial,  the  cause  is  entered  with  the  clerk  of  the  pa- 
pers, on  a  trial  at  bar,  or  wdth  the  marshal  at  nisi  pri- 
us.  The  old  rule  for  entering  causes  in  London  and 
Middlesex  was,  that  unless  they  were  entered  with 
the  chief-justice,  two  days  before  the  sittings,  upon 
which  they  were  to  be  tried,  the  marshal  might  enter 
a  ne  recipiatur^  at  the  request  of  the  defendant  or  his 
attorney "" :  And  this  rule  still  holds,  with  regard  to 
trials  at  the  sittings  in  term.  But  if  a  cause  was  to  be 
tried  at  the  sittings  after  term,  a  ne  recipiatur  could 
not  be  entered,  until  after  proclamation  made,  by  or- 
der of  the  chief-justice,  for  bringing  in  the  record : 
and  then,  if  the  lecord  was  not  brought  in,  the  de- 
fendant's attorney  might  enter  a  ne  recipiatur  '. 

At  present,  the  practice  with  regard  to  entering 
causes  for  trial,  at  the  sittings  after  term,  or  assizes, 

stands 

03  Ear.  1354.  »  R.  H.    15  &    16  Car.  II 

?  2  Bur.  859.  reg- 2. 

a  Ante,  673.  4-.  '  K.  M.  4  Ann.  {a). 


OF  ENTERING   THE   CAUSE  FOll    TRIAL.    77.3 

stands  thus :  All  causes  to  be  tried  at  the  sittings  af- 
ter term,  must  be  entered,  and  the  records  delivered 
to  the  marshal,  at  the  times  following ;  viz.  the  causes 
in  Middlesex,  the  first  day  of  the  sitting  after  term 
in  Middlesex;  and  the  causes  for  London^  two  days 
before  the  adjournment-day  in  London  ^  At  the  as- 
sizes,  the  writ  and  record  are  entered  together " :  And 
no  writ  and  record  of  nisi  prius  shall  be  received,  in 
any  county  in  England,  unless  they  shall  be  deliver- 
ed to,  and  entered  with  the  marshal,  before  the  first 
sitting  of  the  court,  after  the  commission-day,  except 
in  the  county  of  2''ork,  and  there  the  writs  and  records 
shall  be  delivered  to  and  entered  with  the  marshal, 
before  the  first  sitting  of  the  court,  on  the  second 
day  after  the  commission- day,  others  vise  they  shall 
not  be  received  ''.  And  both  in  London  and  Middle- 
sex, as  well  as  at  the  assizes,  every  cause  shall  be 
tried  in  the  order  in  ^\  hich  it  is  entered,^  beginning 
with  remanets,  unless  it  shall  be  made  out  to  the  sa- 
tisfaction of  the  judge,  in  open  court,  that  there  is 
reasonable  cause   to  the  contrary;  who  thereupon 

may 

^  R.  H.  34  G.  III.  and  see  and  entering  writs  and  records 

■notice,  M.  17  Geo.  II.  oi  nisi  fir  ins,  at  the  assizes  foi- 

"  R.  T.  10  &    11    Geo.  II.  the  county  oi  .Norfolk,  or  city 

V  R.  H.  14  Geo.  II.  In  this  of  Ac/?-7y/c/i,  is  the  same  as  in 

rule,  there  is  an  exception  of  other  counties.    And   for  the 

the  county  of  •A'bj/o/.t ;  but  by  fees  payable  to  the    mai'shal, 

R.  H.  32   G.  III.  that  excep-  for  putting  in  the  record  of  n?- 

tion   is  taken  away,   and  the  d  firius  vA  the.  assizes,  see  R. 

time    allowed  for    delivering  K.  13  Jac,  I. 


774  OF  PLEAS,  ike. 

may  make  such  order  for  the  trial  of  the  cause,  so  to 
be  put  off,  as  to  him  shall  seem  just  ^\  Special  jury 
causes  are  appointed  for  particular  days:  And  ia 
London  and  Middlesex,  no  cause  can  be  tried  by  a 
special  jury,  unless  the  rule  for  such  jury  be  drawn 
up,  and  the  cause  marked  as  a  special  jury,  in  the 
marshal's  book  of  causes,  before  the  adjournment- 
day  after  each  term  ". 


The  cause  being  entered,  stands  ready  for  trial,  at 
the  bar  of  the  court,  or  before  the  judge  at  nisi  prius : 
And  previous  to  its  coming  on,  a  brief  should  be 
prepared  for  each  party,  and  delivered  to  counsel; 
containing  a  short  abstract  of  the  pleadings,  a  clear 
statement  of  the  case,  and  a  proper  arrangement  of 
the  proofs,  with  the  names  of  the  witnesses.  The 
grand  rule  to  be  observed  in  drawing  briefs,  as  it  is 
well  expressed  in  a  late  useful  publication  '',  consists 
in  conciseness  with  perspicuity. 

When  the  cause  is  called  on,  the  defendant 
may  plead  any  matter  of  defence,  arising  after 
the  last  continuance,  or  as  it  is  called  in  French, 
puis  darrein  cotitinuance,  or  in  Latin,  post  ulti- 
matn  continuationem:    and   such  a    plea   may    be 

pleaded, 

-^  R.  H.  14  Geo.  II.  and  ^  R.  T.  30  Geo.  III. 

.notice,  M.  17  Geo.  II.  v  1  Sel.  472. 


PUIS   DARREIN   CONTINUANCE.  775 

pleaded,  after  die  jury  are  gone  from  the  bar;  but 
not  after  they  have  given  their  verdict  ^  The  last  con- 
tinuance,  previous  to  the  sittings  or  assizes,  is  the  day 
of  the  return  of  the  'uenire  facias,  from  whence  the 
plea  is  continued,  by  the  award  of  the  distringas,  to 
the  next  term,  unless  the  chief-justice  or  judges  of 
assize  shall  first  come  on  the  day  of?iisiprius  ''i  And 
on  this  day,  if  any  matter  of  defence  has  arisen  after 
the  last  continuance,  it  may  be  pleaded  by  the  de- 
fendant; as  that  the  plaintiff  has  given  him  a  release, 
or  is  a  bankrupt,  outlawed,  or  excommunicated; 
or  that  there  has  been  an  award  made,  on  a  refer- 
ence after  issue  joined ''.  So  it  may  be  pleaded, 
that  ^ifeme  plaintiff  is  married,  or  in  cledt  by  an  ad- 
ministrator, that  the  plaintiff's  letters  of  administra- 
tion are  revoked,  puis  darrein  continuance  ". 

These  pleas  are  twofold,  in  abatement  and  in 
bar  ''.  If  any  thing  happen,  pending  the  writ,  to 
abate  it,  this  may  be  pleaded  puis  darrein  continu- 
ance, though  there  be  a  plea  in  bar ;  for  this  only 
waives  all  pleas  in  abatement,  that  were  in  being  at 
the  time  of  the  bar  pleaded,    and   not  subsequent 

matter : 

z  Doc.  fil-    177.  Pearson  v.  ''2  Esp.  Cas.    M  Pri.  504, 

Parkins,  H.  3  Geo.  I.  Bui.  M.  c  Bui.  M  Pri.  309.  and  see 

^".310.  Com.  Dig.  lit.   j^batetncnt,  T. 

^  Bui.  M.  Pri.  310.  and  see  24. 

Dyer,   361.2   Lutw.    1143.1  'i  Gilb.  C.    P.    105.  Aleyn, 

Blac.  Rep.   497.  for  the  time  66. 
fo  which  the  plea  is  continued 


776  OF   PLEAS 

matter:  but  though  it  be  pleaded  in  abatement,  ytt 
after  a  former  bar  pleaded,  it  is  peremptory,  as  well 
on  demurrer  as  on  trial;  because  after  pleading  in 
bar,  the  defendant  has  answered  in  chief,  and  there- 
fore can  never  have  judgment  to  answer  over  ^.  Af- 
ter a  plea  in  bar,  if  the  defendant  plead  a  plea  puis 
darrein  continuance,  this  is  a  waiver  of  his  bar,  and  no 
advantage  shall  afterwards  be  taken  of  it  \ 

The  great  requisite  of  these  pleas  is  certainty  ^  and 
it  is  not  good  pleading  to  say  generally,  that  after 
the  last  continuance  such  a  thing  happened,  but  the 
time  and  place  must  be  precisely  alleged  ^.  The 
form  of  the  plea,  if  at  the  assizes,  is  as  follows :  And 
71010  at  this  day,  that  is  to  say,  on  ^c.  comes  the  said 
C.  D.  by  S.  S.  his  counsel,  and  says  (if  in  bar)  that 
the  said  A.  B.  ought  not  further  to  maintain  this 
action  against  him  the  said  CD.  because  he  says,  that 

after  the day  of last  past,  from  which  day 

imtil  the day  of in tertn  next,  fun- 
less  the  justices  of  our  lord  the  king,  assigned  to  hold 
the  assizes  of  our  lord  the  king,  in  and  for  the  county 

of should  first  come  on  the day  of at 

in  the  said  county  of ,)  the  action  aforesaid 

is  continued,  to  ivit,  on  £s?c.  at  ^c.  the  said  A.  B.  by 
his  deed,  dated  ^c.  did  release  ^c. ;  and  so  shew  the 

particular 

'^  Gilb.  C.  P.    105.  Aleyn.  261.  Freem.  1 12.  2  Lutw. 

66.  Freem.  252.  1 143.  2  Salk.  519.  2  Wils. 

f  1  Salk.  178.  139. 

s  Yelv.  141.  Crn.  Jar.  h  Bui.  A7.  Pri.  309. 


PUIS  DARREIN   CONTINUANCE.  777 

particular  matter '.  In  abatement^  the  plea  concludes, 
by  praying  judgment  of  the  ivrit,  and  tliat  the  same 
may  be  quashed^  \  or  if  the  writ  is  abated  de  facto,  by 
praying  judgment  if  the  court  will  further  proceed^: 
In  bar,  the  conclusion  of  the  plea  is,  that  the  plaintiff 
ought  not  further  to  maintain  his  action,  and  not,  that 
the  former  inquest  should  not  be  taken;  because  it  is 
a  substantive  bar  of  itself,  and  comes  in  place  of  the 
former,  and  therefore  must  be  pleaded  to  the  action '. 
There  are  likewise  some  pleas,  which  may  be 
pleaded  at  nisi  prius,  that  cannot  properly  be  termed 
pleas  j&«i5  darrein  continuance,  because  the  matter 
pleaded  need  not  be  expressly  mentioned  to  have  hap- 
pened after  the  last  continuance ;  as  in  trespass,  that 
the  plaintiff  was  outlawed  for  felony  °' :  So  the  de- 
fendant may  plead,  that  in  feme  plaintiff  was  covert  on 
the  day  of  the  writ  purchased;  but  he  cannot  plead, 
that  she  took  baron  pending  the  writ,  without  pleading 
it  after  the  last  continuance :  the  diversity  seems  to  be, 
between  such  things  as  disprove  the  writ  in  fact, 
and  such  as  disprove  it  in  law ". 

Pleas 

ifiul.  M.  Pri.  310.  1143.  Bui.  A7.  Pri.   310.  but 

J  Gilb.  C.  p.  105.  2   Lutw.  see  Dyer,  361.  in  marg. 

1143.  ">  Thel.  Dig.  204. 

k  3  Lev.  120.  Bui.  JVi.  Pri.  "  Bro.  Abr.  tit.  Continuance, 

31 1.  ill.  57.  Bui.  Xi.  Pri.  310. 

»  Cro.    Eliz.  49.   2   Lutw. 

Vol.  II.  Q 


778  OF  PLEAS  PUIS,  &c. 

Pleas  after  the  last  continuance  being  productive 
of  delay,  are  subject  to  the  same  sort  of  restraints  as 
pleas  in  abatement:  They  must  be  verified  on  oath, 
before  they  are  allowed  °;  and  they  cannot  be  amend- 
ed, after  the  assizes  are  over  ^ :  There  can  be  but  one 
plea  puis  darrem  continuance  '^ ;  and  such  a  plea  can- 
not be  pleaded  after  a  demun*er  ^  But  if  a  plea  puis 
darrein  continuance  be  filed,  and  verified  on  oath,  the 
court  cannot  set  it  aside  on  motion,  but  are  bound  to 
receive  it  '. 

When  a  plea/?z/ij  darrein  continuance  is  put  in  at  the 
assizes,  the  plaintiff  is  not  to  reply  to  it  there;  for  the 
judge  has  no  power  to  accept  of  a  replication,  nor  to 
try  it,  but  ought  to  return  the  pica,  as  parcel  of  the 
record  of  nisi  prius  ^ ;  and  if  the  plaintiff  demur,  it 
cannot  be  argued  there  ".  Where  a  plea  is  certified 
on  the  back  of  the  postea^  and  the  plaintiff  de- 
murs, if  the  defendant,  on  the  expiration  of  a  rule 

given 

°  Freem.  252.   1   Str.  493.  of  the  judge,  whether  he  will 

p  Yelv,    181.    Freem.    252.  accept  such  plea  or  not,   that 

Bui.  Alf.'  Pri.  309.  is,  whether  he  will  or  will  not 

5  Bro.  Abr.  tit.  Continuance^  proceed  in  the  trial.  And  in 
pi.  5.  41.  Jenk.  160.  Gilb.  Say.  Rep.  268.  aplea/^M^■srfGr- 
C.  P.  105.  rein  continuance  was  set  aside, 

«■  1  Str.  493.  cites  Mo.  871.  because  the  matter  of  it  arose 

1    Ld.    Raym.   266.   but  see  before  the  last  continuance. 

Hob.  81.  contra.  t  Yelv.  ISO.  Cro.  Jac.  261. 

^2  Wils.  137.  3T.R.  554.  S.  C. Freem.  252.  2  Mod.  307. 

but  see  Jenk.  159.  Yelv.  180.  S.  C. 

and  Bui.  M.  Pri.  309.  where  «  2  Mod.  307. 
it  is  said  to  be  in  the  breast 


I 


or   CHALLENGING  JURORS.  779 

given  for  him  to  join  in  demurrer,  refuses  to  do  so, 
the  plaintiff  may  sign  judgment ''. 

Previous  to  swearing  the  jury,  the  plaintiff  may 
withdra\v  the  record,  and  by  that  means  prevent  the 
cause  from  being  tried :  But  otherwise  the  trial  pro- 
ceeds; and  as  the  jury  are  called,  they  may  be  chal- 
lenged. 

Challenges  are  of  two  sorts;  first,  to  the  array;  and 
secondly,  to  the  polls.  Challenges  to  the  array  are  at 
once  an  exception  to  the  whole  panel,  in  which  the 
jury  are  arrayed,  or  set  in  order  by  the  sheriff  in  his 
return ;  and  they  may  be  made  upon  account  of  par- 
tiality, or  some  default  in  the  sheriff,  or  his  under- 
officer  who  arrayed  the  panel  "\  And  generally 
speaking,  the  same  reasons  that  before  awarding  the 
venire,  w-ere  sufficient  to  have  directed  it  to  the  co- 
roners or  elisors,  will  be  also  sufficient  to  quash  the 
array,  when  made  by  an  officer,  of  whose  partiality 
there  is  any  good  ground  of  suspicion.  Also,  though 
there  be  no  personal  objection  against  the  sheriff,  yet 
if  he  arrays  the  panel  at  the  nomination,  or  under 
the  direction  of  either  party,  this  is  good  cause  of 
challenge  to  the  array. 

Challenges  to  the  polls,  in  capita,  are  excep- 
tions  to   particular  jurors;    and   according  to   Sir 

Edward 

^  Freem.  252 .   BuJ.  M.  Pri.  311.  ^  Cowp.  112. 


780  OF  CHALLENGING  JURORS. 

EdiMard  Coke^,  they  are  of  four  kinds ;  first,  propter 
honoris  respectum^  as  if  a  lord  of  parliament  be  im- 
panneled  on  a  jury,  in  which  case  he  may  challenge 
himself,  or  be  challenged  by  either  party.  Secondly, 
propter  defectum^  as  if  a  jurj- man  be  an  alien  bom,  or 
a  slave  or  bondman ;  so  if  he  be  not  resident  in  the 
county,  or  have  not  the  necessary  qualification  of 
estate.  All  incapable  persons,  as  infants,  idiots,  and 
persons  of  non-sane  memory,  are  likewise  excluded 
upon  this  ground  y.  Thirdly  propter  affectum^  as  that 
a  juror  is  of  kin  to  either  party,  within  the  ninth  de- 
gree^; that  he  has  been  arbitrator,  or  declared  his 
opinion  on  either  side ;  that  he  has  an  interest  in  the 
cause  *;  that  there  is  an  action  depending  between 
him  and  the  party ;  that  he  has  taken  money  for  his 
verdict,  or  even  eat  and  drank  at  either  party's  ex- 
pence  ;  that  he  has  formerly  been  a  juror  in  the  same 
cause;  that  he  is  the  party's  master,  servant,  tenant  ^, 
counsellor,  steward,  or  attorney,  or  of  the  same  so- 
ciety or  corporation  with  him.  All  these  are  prin- 
cipal causes  of  challenge:  Besides  which,  there 
are  challenges  to  the  faiiour,  where  the  party  ob- 
jects only  on  account  of  some  probable  grounds  of 
suspicion,  as  acquaintance,  and  the  like;  the  va- 
lidity of  which  must  be  left  to  the  determination  of 

triers, 

X  1  Inst.  156.  a  3  Bur.  1856. 

y  Gilb.  C.  P.  95.  «»Gilb.C.  P.  95. 

^  Finch.  L.  401. 


OF  SWEARING  JURORS.  781 

irierSf  who,  in  case  the  first  man  called  be  challenged, 
are  two  indifferent  persons  named  by  the  court;  and 
if  they  try  one  man  and  find  him  indifferent,  he  shall 
be  sworn ;  and  then  he  and  the  tv\^o  triei's  shall  try 
the  next;  and  when  another  is  found  indifferent  and 
sworn,  the  two  triers  shall  be  superseded,  and  the  two 
first  sworn  on  the  jury  shall  try  the  rest "".  Fourthly, 
a  juror  may  be  challenged  propter  delictum,  as  for  a 
conviction  of  treason,  felony,  perjury,  or  conspiracy; 
or  if,  for  some  infamous  offence,  he  has  received 
judgment  of  the  pilloiy,  tumbrel,  or  the  like,  or  to 
be  branded,  whipped  or  stigmatized;  or  if  he  be 
outlawed  or  excommunicated,  or  hath  been  attainted 
of  false  verdict,  pnpjmmire,  or  forgery.  A  juror  may 
himself  be  examined  on  his  voire  dire,  with  regard  to 
such  causes  of  challenge,  as  are  not  to  his  dishonour 
or  discredit;  but  not  with  regard  to  any  crime,  or 
any  thing  which  tends  to  his  disgrace  or  disadvan- 
tage*^. 

By  the  balloting  act,  we  may  remember,  the 
names  and  additions  of  the  jurors  are  to  be  written 
on  pieces  of  parchment  or  paper,  of  equal  size, 
and  delivered  to  the  marshal,  by  the  under-sheriff 
or  his  agent;  and  are  to  be  rolled  up,  by  the  di- 
rection and  care  of  the  marshal,  all  as  near  as  may 

be 

=  Co.  Lit.  158.  C.  P.  Chap.  8.  Bac.  Abr.  tit. 

^  For  more  of  challenges,  Juries,  (E).  3  Blac.  Com  = 
see  Co.  Lit.   156,  &c.    Gilb.     358,  &c. 


782  OF   SWEARING  JURORS. 

be  ill  the  same  manner,  and  put  together  in  a  box  or 
glass,  to  be  provided  for  the  purpose  *.  And  by  the 
same  act  ^,  *'  when  any  cause  shall  be  brought  on  to 
"  be  tried,  some  indifferent  person,  by  direction  of 
*'  the  court,  may  and  shall,  in  open  court,  draw  out 
"  twelve  of  the  said  parchments  or  papers,  one  after 
*'  another  J  and  if  any  of  the  persons  whose  names 
"  shall  be  so  drawn,  shall  not  appear,  or  be  challeng- 
"  ed  and  set  aside,  then  such  further  number,  until 
"  twelve  persons  be  drawn  who  shall  appear,  and  af- 
"  ter  all  causes  of  challenge,  shall  be  allowed  as  fair 
"  and  indifferent;  and  the  said  twelve  persons  so  first 
*'  drawn  and  appearing,  and  approved  as  indifferent, 
"  their  names  being  marked  in  the  panel,  and  they 
"  being  sworn,  shall  be  the  jury  to  try  the  said  cause; 
"  and  the  names  of  the  persons  so  drawn  and  sworn, 
"  shall  be  kept  apart  by  themselves,  in  some  other 
"  box  or  glass  to  be  kept  for  that  purpose,  till  such 
*'  jury  shall  have  given  in  their  verdict,  and  the  same 
"  is  recorded,  or  until  such  jury  shall,  by  consent  of 
*'  the  parties,  or  leave  of  the  court,  be  discharged; 
*'  and  then  the  same  names  shall  be  rolled  up  again, 
"  and  returned  to  the  former  box  or  glass,  there  to 
"  be  kept,  with  the  other  names  remaining  at  that 
*'  time  undrawn,  and  so  toties  qiiotiesy  as  long  as  any 
*'  cause  remains  then  to  be  tried." 

Where 

^Jinte,724,,  5.  f  3  Geo,  IT.  c.  25.  $  1 1. 


i 


•        OF   TALES-MEN.  785 

Where  a  'oiew  is  allowed  in  any  cause,  it  is  pro- 
vided by  the  same  statute  s,  that  the  jurors  who  took 
the  view,  or  such  of  them  as  shall  appear,  shall  be 
first  sworn  upon  the  jury  to  try  the  cause,  before  any 
drawing  as  aforesaid;  and  so  many  only  shall  be 
drawn,  to  be  added  to  the  viewers  who  appear,  as 
shall,  after  all  defaulters  and  challenges  allowed,  make 
up  the  number  of  twelve,  to  be  sworn  for  the  trial  of 
the  cause. 

At  common  law,  if  a  sufficient  number  of  jury- 
men did  not  appear  at  the  trial,  or  so  many  of  them 
were  challenged  and  set  aside,  as  that  the  remainder 
would  not  make  up  a  full  jury,  there  issued  a  writ  to 
the  sheriff,  ofundecim,  decetij^  or  octo  tales,  according 
to  the  number  that  was  deficient,  in  order  to  com- 
plete the  jury  '':  And  this  is  still  necessary,  on  trials 
at  bar '.  But  now,  by  the  statute  3^ Men.  VIII.  c.  6. 
§  6,  7,  8.  (extended  to  qui  tarn  actions,  by  the  4  &  5 
Ph.  &  M.  c.  7.)  "  the  justices  of  assize  or  nisiprius>, 
*'  upon  request  made  by  the  plaintiif  or  defendant,  are 
''  authorized  to  command  the  sheriff',  or  other  minis- 
''  ter  to  whom  the  making  of  the  return  shall  apper- 
"  tain,  to  name  and  appoint,  as  often  as  need  shall  re- 
'*  quire,  so  many  of  such  other  able  persons  of  the 
"  said  county,  then  present  at  the  said  assizes  or 
^'  TusipriuSy  as  shall  make  up  a  full  jury;  which  per- 

"  sons 

x^U.  '^  Gilb.  C.  P.  73.  ^  5  T.  R.  457,  8.  462. 


"784  OF  TALES-MEN. 

*'  sons  shall  be  added  to  the  former  panel,  and  their 
"  names  annexed  to  the  same;  and  that  the  parties 
"  shall  have  their  challenges  to  the  jurors  so  named, 
"  added  and  annexed  to  the  said  former  panel,  as  if 
"  they  had  been  impannelcd  upon  the  'oenire  facias ; 
"  and  that  the  said  justices  shall  and  may  proceed  to 
"  the  trial  of  every  such  issue,  with  those  persons 
*'  that  were  before  impanneled  and  returned,  and 
"  with  those  newly  added  and  annexed  to  the  said 
"  former  panel,  in  such  wise  as  they  might  or  ought 
*'  to  have  done,  if  all  the  said  jurors  had  been  return- 
*'  ed  upon  the  writ  of  venire  facias;  and  that  every 
"  such  trial  shall  be  as  good  and  effectual  in  the  law, 
*'  to  all  intents  and  purposes,  as  if  such  trial  had  been 
"  had  by  twelve  of  the  jurors  impanneled  and  re- 
'*  turned  upon  the  writ  of  venire  facias.''^ 

The  qualification  of  a  tales-many  in  point  of  estate, 
is  only^T;*?  pounds  per  annum  K  And,  by  the  7  &  8 
l^F.  III.  c.  32.  §  3.  the  sheriff  is  directed  to  return 
such  persons,  to  serve  upon  the  tales,  as  shall  be  re- 
turned upon  some  other  panel,  and  then  attending  the 
court.  Hence  it  is  usual  to  draw  their  names  out  of 
the  box ;  though  where  it  is  desired  by  the  gentlemen 
of  the  panel  who  appear,  and  consented  to  by  the  par- 
ties, the  sheriff  may  return  such  other  gentlemen  as 
can  be  procured  to  attend ''.  The  pl^tiff  may  avoid  a 

nonsuit, 

J  Stat.  4  &  5  W.  &  M.  c.  24.  §  18.  k  Bui.  M.  Pri.  305. 


OF   BILLS  OP  EXCEPTIONS.  785 

nonsuit,  by  refusing  to  pray  a  tales  * :  And  after  a 
juror  has  been  challenged  on  the  principal  panel,  he 
ought  not  to  be  sworn  as  a  tales-man  ™. 

After  the  jury  are  sworn,  the  cause  is  opened,  and 
the  trial  proceeds,  unless  the  parties  agree  to  imth- 
draw  a  juror  ";  which  is  frequently  done,  at  the  re- 
commendation of  the  judge,  where  it  is  doubtful 
whether  the  action  will  lie;  and  in  such  case  the 
consequence  is,  that  each  party  pays  his  own  costs. 


In  the  progress  of  the  trial,  either  party,  if  there 
be  occasion,  may  tender  a  bill  of  exceptions,  or  de- 
mur to  the  evidence.  To  understand  the  nature  of 
these  proceedings,  it  should  be  observed,  that  in 
the  first  stage  of  that  process  under  which  facts  are 
ascertained,  the  judge  decides  whether  the  evidence 
offered  conduces  to  the  proof  of  the  fact,  which  is  to 
be  ascertained;  and  there  is  an  appeal  from  his  judg- 
ment, by  a  bill  of  exceptions.  The  admissibility  of 
the  evidence  being  established,  the  question  how  far 
it  conduces  to  the  proof  of  the  fact  which  is  to  be 
ascertained,  is  not  for  the  judge  to  decide,  but  for 
the  jury  exclusively ;  with  which  the  judges  interfere 

in 

'  1  Str.  .707.  where  a  juror  is  withdrawn, 

'"  Id.  640.    2  Ld.   Raym.     see  Append.  Chap.  XXXVI 1. 
1410.  S.C.  §26. 

"  For  the  form  of  the  fiostea. 
Vol.  II.  R 


786  OF  BILLS  OF  EXCEPTIONS. 

in  no  case,  but  where  they  have  in  some  sort  sub- 
stituted themselves  in  the  place  of  the  jury  in  at- 
taint ^  upon  motions  for  new  trials.  When  the  jury 
ha^e  ascertained  the  fact,  if  a  question  arises  whether 
the  fact  thus  ascertained,  maintains  the  issue  joined 
between  the  parties,  or  in  other  words,  whether  the 
law  arising  upon  the  fact  (the  question  of  law  in- 
volved in  the  issue  depending  upon  the  true  state  of 
the  fact,)  is  in  favour  of  one  or  other  of  the  parties, 
that  question  is  for  the  judge  to  decide.  Ordinarily 
he  declares  to  the  jury,  what  the  law  is  upon  the 
fact  which  they  find,  and  then  they  compound  their 
verdict  of  the  law  and  fact  thus  ascertained.  But  if 
the  party  wishes  to  withdraw  from  the  jury,  the  ap- 
plication of  the  law  to  the  fact,  and  all  consideration 
of  what  the  law  is  upon  the  fact,  he  then  demurs  in 
law  upon  the  evidence;  and  the  precise  operation 
of  that  demurrer  is,  to  take  from  the  jury,  and  refer 
to  the  court,  the  application  of  the  law  to  the  fact  °, 
A  bill  of  exceptions  is  founded  upon  some  objec- 
tion in  point  of  law,  to  the  opinion  and  direction 
of  the  court,  upon  a  trial  at  bar,  or  of  the  judge  at 
nisi  prills^  either  as  to  the  competency  of  witnesses  ^ , 
the  admissibility  of  evidence  '^,  or  the  legal  effect 

of 

«  2  H.  Blac.  205,  6.         P  3  T.  R.  27.         q  1  Salk.  284. 


OF  BILLS   OF   EXCEPTIONS.  787 

of  it  %  or  for  over-ruling  a  challenge,  or  refusing  a 
demurrer  to  evidence  %  &:c.  In  these  cases  it  is  en- 
acted, by  the  statute  fFestm.  2.  (13  Edw,  I.)  c.  31. 
that  "  if  the  party  write  the  exception,  and  pray  that 
"  the  justices  may  put  their  seals  to  it  for  a  testimo- 
"  ny,  the  justices  shall  put  their  seals;  and  if  one 
"  will  not,  another  shall:  And  if  the  king,  on  com- 
*'  plaint  made  of  the  justices,  cause  the  record  to 
"  come  before  him,  and  the  exception  be  not  found 
*•  in  the  roll,  and  the  party  shew  the  exception  writ- 
"  ten,  wirii  the  seal  of  the  justice  affixed,  the  justice 
'*  shall  be  commanded  that  he  appear  at  a  certain 
"  day,  to  confess  or  deny  his  seal;  and  if  the  justice 
*'  cannot  deny  his  seal,  judgment  shall  be  given, 
*'  according  to  the  exception,  as  it  may  be  allowed 
"  or  disallowed."  This  statute  extends  to  trials  at 
bar,  as  well  as  those  at  nisi  prius;  but  it  has  been 
doubted,  whether  the  statute  extends  to  criminal 
cases  '.  If  a  judge  allow  the  matter  to  be  evidence, 
but  not  conclusive,  and  so  refer  it  to  the  jury  no 
bill  of  exceptions  will  lie;  as  if  a  man  produce 
the  probate  of  a  will,  to  prove  the  devise  of  a  term 
for  years,  and  the  judge  leave  it  to  the  jury;  be- 
cause 

f  T.  Raym.  404.  T.   Jon.  Show.  P.    C.    120.    Append. 

146.  S.  C.    1  Blac.  Rep.  555.  Chap.  XXXVII.  §  46. 

3    Bur.    1693.    S.    C.   Cowp.  '  See  the   cases  referred  lo 

161.  2  Blac.  Rep.  929.  S.  C.  in    1   Bac.    Abr.  325.  Wiiles, 

■^  Cro.  Car.    341.  and  see  535.  Bui.  AV.  P;-f.  316. 


788  OF  BILLS  OF  EXCEPTIONS- 

cause  though  the  evidence  be  conclusive,  yet  the 
jury  may  hazard  an  attaint^  if  they  please,  and  the 
proper  ^vay  had  been,  to  have  demurred  to  the  evi- 
dence ". 

The  bill  of  exceptions  must  be  tendered  at  the 
trial:  for  if  the  party  then  acquiesce,  he  waives  it, 
and  shall  not  resort  back  to  his  exception,  after  a 
verdict  against  him,  when  perhaps,  if  he  had  stood 
upon  his  exception,  the  other  party  had  more  evi- 
dence, and  need  not  have  put  the  cause  on  that 
point.  The  statute  indeed  appoints  no  time ;  but  the 
nature  and  reason  of  the  thing  require,  that  the  ex- 
ception should  be  reduced  to  writing,  when  taken 
and  disallowed,  like  a  special  verdict,  or  demurrer 
to  evidence :  not  that  it  need  be  drawn  up  in  form, 
but  the  substance  must  be  reduced  to  writing,  while 
the  thing  is  transacting,  because  it  is  to  become  a 
record  ". 

The  bill  of  exceptions  is  either  tacked  to  the 
record,  or  not:  If  it  be  not  tacked  to  the  record, 
it  is  necessary  to  set  out  the  whole  of  the  proceed- 
ings, previous  to  the  trial;  but  otherwise,  it  be- 
gins with  the  proceedings  after  issue  joined  ".  And 
in  either  case,  it  goes  on  to  state,  according  to  the 
circumstances,  that  a  witness  was  produced  "^  to 
prove  certain  facts;   the   particular  evidence  offer- 

ed, 

■^  T.  Raym.  404,  a.  T.  Jon.         ^"  Bui.  Az.  Pri.  317. 
146.  S.C.  -3T.R.  27. 

V  1  Salk.  283,  9. 


OF   BILLS  Of   liXCEPriOKS.  VS9 

ed  -,  or  given  to  the  jury,  in  support  of  the  whole  or 
a  part  of  the  case;  or  that  a  challenge  was  made,  or 
demurrer  to  evidence  tendered;  the  allegations  of 
counsel,  respecting  the  competency  of  the  witness, 
the  admissibility  of  the  evidence,  or  the  legal  effect 
of  it,  &c. ;  the  opinion  and  direction  of  the  court  or 
judge  thereon;  the  verdict  of  the  jury;  and  the  ex- 
ception of  the  counsel,  to  the  opinion  given  ^  And 
where  the  bill  of  exceptions  respects  the  legal  effect 
of  evidence,  the  conclusion  is  as  follows:   "  And 
'  inasmuch  as  the  said  several  matters,  so  produced 
'  and  given  in  evidence  for  the  party  objecting,  and 
'  by  his  counsel  objected  and  insisted  on,  do  not  ap- 
'  pear  by  the  record  of  the  verdict  aforesaid,  the  said 
'  counsel  did  then  and  there  propose  their  aforesaid 
'  exception  to  the  opinion  of  the  judge,  and  request- 
'  ed  him  to  put  his  seal  to  this  bill  of  exceptions, 
'  containing  the  said  several  matters  so  produced 
'  and  given  in  evidence  for  the  party  objecting  as 
'  aforesaid,  according  to  the  form  of  the  statute  in 
'  such  case  made  and  provided;  and  thereupon  the 
'  aforesaid  judge,  at  the  request  of  the  said  coimsel 

"  for 

y  1  Lutw.  984.  1  Salk.  284.  Mostyn,  XL  Stat.  Tri.  187,  8. 

^  For  precedents  of  bills  of  And  for  precedents  of  a  bill  of 
exceptions,  as  to  the  legal  ef-  exceptions,  as  to  the  legal  ef- 
fect of  the  ivhfjle  of  the  evi-  feet  of  evidence  in  support  of 
dcnce,  see  Brownl.  129.  il/oney  di  particular  fact,  see  Brownl. 
and  others  v.  Z-cacA,  Bui.  A7.  131. Append. Chap. XXXVII. 
Pri.    317.    and    Fabri^as    v.  §  46. 


790  OF   BILLS  OF   EXCEPTIONS. 

'*  for  the  party  objecting,  did  put  his  seal  to  this  bill 
"  of  exceptions,  pursuant  to  the  aforesaid  statute  in 

'*  such  case  made  and  provided,  on  the day 

''  of in  the year  of  the  reign,  &c/" 

On  tendering  the  bill,  if  the  exceptions  therein 
are  truly  stated,  the  judges  ought  to  set  their  seals, 
in  testimony  that  such  exceptions  were  taken  at  the 
trial:  but  if  the  bill  contain  matters  false,  or  untruly 
stated,  or  matters  wherein  the  party  was  not  over- 
ruled, the  judges  are  not  obliged  to  affix  their  seals; 
for  that  would  be  to  command  them  to  attest  a  falsi- 
ty ^.  If  the  judges  refuse  to  sign  the  bill  of  excep- 
tions, the  party  grieved  may  have  a  writ,  grounded 
upon  the  statute,  commanding  them  to  put  their 
sGcds,  juxlajhrfnam  statuti'^^  &c.  This  writ  contains 
a  surmise  of  an  exception  taken  and  over-ruled,  and 
commands  the  justices,  that  if  it  be  so,  they  put  their 
seals  '^ ;  upon  which,  if  it  be  returned  quod  non  ita 
est,  an  action  lies  for  a  false  return,  and  thereupon 
the  surmise  will  be  tiied,  and  if  found  to  be  so, 
damages  will  be  given;  and  upon  such  recovery, 
there  issues  a  peremptory  writ  *=. 

When  the  bill  of  exceptions  is  sealed,  the  truth 
of  the  facts  contained  in  it  can  never  afterwards  be 
disputed  ^    And  judgment  being   entered,  a  writ 

of 

^  Bui.  jYi.  Pri.  Sir.  d  Reg,  Brcv.  182. 

^  Show.  P.  C.  120.  e  2  Inst.  427. 

c  2  Inst.  427.  Bui.  M.  Pri.  f  Show.  P.  C.  120. 
516. 


OF  DEMURRERS   TO  EVIDENCE.  791 

of  error  is  brought,  to  remove  the  proceedings  into 
the  court  above;  for  a  bill  of  exceptions  is  only  to 
be  made  use  of  upon  a  writ  of  error :  And  therefore, 
where  a  writ  of  error  will  not  lie,  there  can  be  no 
bill  of  exceptions  ^.  Upon  the  return  of  the  writ  of 
error,  the  judge  is  called  upon  by  writ,  either  to 
confess  or  deny  his  seal*";  and  if  he  confess  it,  the 
proceedings  being  entered  of  record,  the  party  as- 
signs error':  If  the  judge  deny  his  seal,  the  plain- 
tiff in  the  writ  of  error  may  take  issue  thereupon, 
and  prove  it  by  witnesses  *". 

The  judgment  on  the  wTit  of  error,  as  in  other 
cases,  is  either  that  the  former  judgment  be  affirmed, 
or  reversed.  If  it  be  reversed,  a  vefiire  de  novo  is- 
sues; which  shall  be  made  returnable  in  this  court, 
although  the  judgment  was  given  in  the  Common 
Pleas'. 

A  demurrer  to  evidence  is  a  proceeding,  by 
which  the  judges  of  the  court  in  which  the  action 
is  depending,  are  called  upon  to  declare  what  the 
law  is,  upon  the  facts  shewn  in  evidence,  analo- 
gous  to  the  demurrer  upon  facts  alleged  in  plead- 
ing '".    The  reason  for  demurring  to  evidence  is, 

that 

g   1  Salk.  284.  Rex  v.  Inha-  k  2  Inst.  428. 

bitanta  of  Preston^  Bui.  jYi.Pri.  i  3  T.  R.  ZQ. 

316.  1  Blac.  Rep.  679.  Cowp.  «"  2  H.  Blac.  205.  and  see 

501.  but  see  2  Lev.  236.  3  Salk.  122.  4  Bac.  Abr.  136. 

^  Rast.  Ent.  293.  b.  3  Bur.  3  Blac.   Com.  372.   and   see 

1693.  1  Blac.  Rep.  556.  S.C.  Append.  Chap.  XXXVII.  ^ 

'  2  Lutw.  905,  6.  42,  gcc. 


792  OF  DEMURRERS  TO  EVIDENCE. 

that  the  jury,  if  they  please,  may  refuse  to  find  a 
special  verdict,  and  then  the  facts  never  appear  on 
the  record  " :  And  the  question  upon  a  demurrer  to 
evidence  being,  whether  the  evidence  offered  be  suf- 
licient  to  maintain  the  issue,  the  party,  on  such  de- 
murrer, cannot  take  advantage  of  any  objection  to 
the  pleadings  °.  A  demurrer  to  evidence  is  not  al- 
lowed in  the  king's  case ;  and  therefore  if  a  doubt 
arise,  upon  the  effect  of  the  evidence,  the  judge 
must  direct  the  jury  to  find  the  matter  specially  ''. 

If  a  matter  of  record^  or  other  matter  in  writing, 
be  offered  in  evidence,  to  maintain  an  issue  joined 
between  the  parties,  all  the  books  agree,  that  the  ad- 
verse party  may  insist  upon  the  jury  being  discharged 
from  giving  a  verdict,  by  demurring  to  the  evidence, 
and  obliging  the  party  offering  the  same  to  join  in 
demurrer,  or  waive  the  evidence  '^ :  And  the  reason 
given  for  it  is,  that  there  cannot  be  any  variance  of 
matter  in  writing'.  The  books  also  agree,  that  if 
parol  evidence  be  offered,  and  the  adverse  party  de- 
mur, he  who  offers  the  evidence  may  join  in  demur- 
rer, if  he  will.  But  the  languiige  of  the  old  books  is 
very  indistinct  upon  the  question,  whether  t|ie  party 

offering 

"  Per  BuUer,  Just.  Doug,-.  <\  2  H.  Blac.  206. 

134.  -Cro.Eliz.  7.'?.'?.  h  Co.  104 

o  7^.218.  S.  C. 
V  Co.   Lit.  72,    5    Co.    104. 


OF   DEMURRERS   TO  EVIDENCE.  79S 

offering  jf;^/(7/ evidence  shall  be  obliged  to  join  in 
demurrer.  In  a  late  case  %  which  came  before  the 
House  of  Lords,  it  was  observed,  in  delivering"  the 
opinion  of  the  judges,  that /?^ro/ evidence  is  some- 
times certain,  and  no  more  admitting  of  any  variance, 
than  a  matter  in  writing;  but  it  is  also  often  loose 
and  indeterminate,  often  circumstantial.  The  reason 
for  obliging  the  party  offering  evidence  in  writing,  to 
join  in  demurrer,  applies  to  the  first  sort  of  parol  evi- 
dence ;  but  it  does  not  apply  to  parol  evidence  that  is 
loose  and  indeterminate,  which  may  be  urged  with 
more  or  less  effect  to  a  jurj^ ;  and  least  of  all,  will  it  ap- 
ply to  evidence  of  circumstances,  which  evidence  is 
meant  to  operate  beyond  the  proof  of  the  existence 
of  those  circumstances,  and  to  conduce  to  the  proof 
of  the  existence  of  other  facts.  In  such  cases  how- 
ever, if  the  party  who  demurs  will  admit  the  evidence 
of  the  fact,  which  evidence  is  loose  and  indetermi- 
nate, or  in  the  case  of  circumstantial  evidence,  if  he 
will  admit  the  existence  of  the  fact,  which  the  cir- 
cumstances offered  in  evidence  conduce  to  prove, 
there  will  then  be  no  more  variance  in  this  parol  evi- 
dence, than  in  a  matter  in  writing;  and  in  such  case, 
the  party  shall  be  allowed  to  demur,  and  his  adver- 
sary must  join  in  demurrer.  But  on  a  demurrer  to 
circu7nstantial  evidence,  unless  the  party  demurring 

will 

"5  Gibnon  andJo/imon  v.  Hunter,  2  II.  Blac  187. 

Vol.  II.  S 


^94  OF   DEMURRERS  TO  EVIDENCE. 


\ 


will  distinctly  admit  upon  the  record,  every  fact  and 
every  conclusion  which  the  evidence  offered  con- 
duces to  prove,  it  is  not  competent  for  him  to  insist 
upon  the  jury  being  discharged  from  giving  a  ver- 
dict, by  demurring  to  the  evidence,  and  obliging  the 
party  offering  it  to  join  in  demurrer  ^ :  though,  if  the 
party  offering  the  evidence  consent  to  waive  the  ob- 
jection, and  join  in  demurrer,  every  fact  is  to  be  con- 
sidered by  the  court  as  admitted,  which  the  jury 
could  infer  in  his  favour,  from  the  evidence  demur- 
red to'':  And  the  court  will,  if  they  can,  give  judg- 
ment upon  such  evidence  '' ;  but  otherwise  a  venh-e 
de  1101)0  must  be  awarded  '"^ 

The  whole  operation  of  entering  the  matter  upon 
record,  and  conducting  a  demurrer  to  evidence,  is 
and  ought  to  be  under  the  direction  and  control  of 
the  court,  upon  a  trial  at  bar,  or  of  the  judge  at  7iisi 
pr'ius  "■ ;  subject  however  to  an  appeal,  by  a  bill  of  ex- 
ceptions, if  the  demurrer  be  refused  ■ .  And  where  a 
demurrer  to  evidence  is  admitted,  it  is  usual  for  the 
court  or  judge  to  give  orders  to  the  associate,  to  take 
a  note  of  the  testimony;  which  is  signed  by  the 
counsel  on  both  sides,  and  the  demurrer  is  affixed  to 
the  postal  ^  Upon  a  demurrer  to  evidence,  we  have 

seen. 

t  Gibson  ^x\dL  Johnson  v.  Hun-  ^  2  H.  Blac.  209. 

ttr,  2  H.  Blac.    187.  and  see  -^ /J.  268. 

Alfvn,   18.   Sty.  Rep.  22.  34,  y /rf.  z/^irf.  Cro.  Car.  341. 

S.  C.  '^  Bui.  ^'V.  PH.  313.  and  see 

u  Doug.  119.  Append.   Chap.  XXXVII.  C 

V  Id.  ibid.  42. 


OF   THE  jury's  WITHDRAWING.  795 

seen,  the  damages  may  be  assessed  conditionally  by 
the  principal  jury,  before  they  are  discharged;  or 
they  may  be  assessed  by  another  jur}^,  upon  a  writ  of 
inquiry,  after  the  demurrer  is  determined*:  And  it 
is  said  to  be  the  most  usual  course,  when  there  is  a 
demurrer  to  evidence,  to  discharge  the  jury  without 
further  inquiry  ''. 

The  evidence  being  gone  through,  and  summed 
up  by  the  judge,  the  jury,  if  they  think  proper,  may 
ivithdraiv  from  the  bar,  to  dehberate  on  tlieir  verdict. 
And  they  are  allowed  to  take  with  them,  by  leave  of 
the  court,  letters  patent  and  deeds  under  seal,  and 
the  exemplification  of  witnesses  in  Chancery,  if  dead; 
but  wi'itings  or  books  which  are  not  under  seal,  ought 
not  to  be  delivered  to  the  jurors,  without  the  assent 
of  both  parties",  nor  any  evidence  but  what  was 
shewn  to  the  court''.  If  the  jury  take  with  them 
patents,  deeds,  &c.  without  leave  of  the  court,  or 
writings  not  under  seal,  books,  &c.  which  have  been 
given  in  evidence,  without  the  assent  of  both  parties, 
this,  however  irregular,  will  not  avoid  the  verdict; 
though  they  be  taken  by  tlie  delivery  of  the  party 

for 

^  Jnte,  517,  18.  Plowd.  410.  44. 

1  Ld.  Raym.  60.  Doug.  222.  c  Cro.  Eliz.  411. 

*>  Cro.    Car.    143.    and    sec  d  o  Rol.  Abr.  686, 
Append.  Chap.    XXXVII.  § 


796  or  A  NONSUIT. 

for  whom  the  verdict  was  given ' :  So  though  one  of 
the  jury  shew  a  writing,  which  was  not  given  in  evi- 
dence, to  his  companions^.  But  if  the  paity  for 
whom  the  verdict  is  given,  or  any  for  him,  deliver  to 
the  jury,  after  they  are  gone  from  the  bar,  a  letter  or 
other  writing  not  given  in  evidence,  it  will  avoid  the 
verdict':  And  so  if  they  examine  witnesses  by 
themselves,  w^ho  were  examined  before,  though  to 
the  same  evidence  as  was  given  in  court  ^.  But  they 
may  come  back  into  court,  to  hear  the  evidence  of  a 
thing  whereof  they  are  in  doubt '.  The  objection  in 
these  cases  must  be  returned  upon  tlie  postea^  or 
made  parcel  of  the  record;  otherwise  it  will  not  be  a 
ground  for  staying  judgment,  or  bringing  a  writ  of 
error ). 

When  the  jury  have  agreed,  they  return  to  the 
bar:  but  before  they  gave  their  verdict,  it  was  for- 
merly usual  to  call  or  demand  the  plaintiff,  in  order 
to  answer  the  amercement,  to  which  by  the  old  law 
he  was  liable,  in  case  he  failed  in  his  suit  ^';  and  it  is 
now  usual  to  call  him,  whenever  he  is  unable  to  make 
out  his  case,  either  by  reason  of  his  not  adducing 
evidence  in  support  of  it,  or  evidence  arising  in  the 
proper  county.    The  cases  in  which  it  is  necessary 

that 

«^  Cro.  Eliz.  411.  and  see  2  ■  Rol.  Abr.  676. 

Salk.  645.  iCro.    Eliz.  616.  and  see 

fCro.   Eliz.    616.  Bui.  A?.  Pn.  308. 

K  Co.  Lit.  227.  b.             ,  J^  3  B!ac.  Com.  376. 
hCro.  Eliz.  411,12. 


OF  A   NONSUIT.  797 

that  the  evidence  should  arise  in  a  particular  county, 
are  either  where  the  action  is  in  itself  local ;  or  made 
so  by  act  of  parliament,  as  in  actions  upon  penal  sta- 
tutes, &c.  or  where,  upon  a  motion  to  change  or  re- 
tain the  venue,  the  plaintiff  undertakes  to  give  mate- 
rial evidence,  in  the  county  v\  here  the  action  was 
brought '.  And  there  is  this  ad\'antage  attending  a 
nonsuit;  that  the  plaintiff,  though  subject  to  the  pay- 
ment of  costs,  may  afterwards  bring  another  action 
for  the  same  cause,  which  he  cannot  do,  after  a  ver 
diet  against  him. 

A  nonsuit  can  only  be  at  the  instance  of  the  defen- 
dant :  And  therefore  where  the  cause  at  nisi  prim 
was  called  on,  and  jury  sworn,  but  no  counsel,  at- 
tornies,  parties,  or  witnesses  appeared  on  either  side, 
the  judge  held,  that  the  only  way  was  to  discharge 
the  jury ;  for  nobody  has  a  right  to  demand  the  plain- 
tiff, but  the  defendant,  and  the  defendant  not  de- 
manding him,  the  judge  could  not  order  him  to  be 
called'".  In  an  action  against  ^^'ZJ(?r^/ defendants,  the 
plaintiff  must  be  nonsuited  as  to  all,  or  none  of  them; 
and  therefore,  if  one  of  two  defendants  suffer  judg- 
ment by  default,  and  the  other  go  to  trial,  the  plain- 
tiff cannot  be  nonsuited  as  to  him;  but  such  defen- 
dant 

1  2  Blac.  Rep.  1039.  but  see         "^  1  Str.  267.  see  ajso  2  Str. 
:^T.  R.  281.  1117. 


798  OF   DAMAGES. 

dant  must  have  a  verdict,  if  the  plaintiff  fail  to  make 
out  his  case  ". 

The  plaintiff  in  no  case  is  compellable  to  be  non- 
suited"; and  therefore,  if  he  insist  upon  the  matter 
being  left  to  the  jury,  they  must  give  in  their  verdict^ 
which  is  general  or  special.  A  general  verdict  is  a 
finding  by  the  jury,  in  the  terms  of  the  issue,  or 
issues  referred  to  them ;  and  it  is  either  wholl}'  or  in 
part,  for  the  plaintiff  or  for  the  defendant.  If  it  be  for 
the  plaintiff,  or  for  the  defendant  in  replemn  p,  the 
jury  should  regularly  assess  the  damages :  But  when 
the  plaintiff  is  nonsuited  on  the  trial  of  an  issue,  he 
cannot  have  contingent  damages  assessed  for  him  on 
a  demurrer'';  though,  when  the  plaintiff  in  replemn 
is  nonsuited,  the  jury  may  assess  damages  for  the 
defendant  ^ 

Damages  are  a  pecuniary  compensation  for  an  in- 
jury ;  and  may  be  recovered  in  every  personal  action 
that  lies  at  common  law :  But  in  an  action  for  a  pe- 
nalty given  by  statute  to  a  common  informer,  they 
are  not  recoverable  ' ;  nor  for  delay  of  execution,  in  a 
scire  facias  founded  on  the  statute  of  Westm,  Q. 
c.  45 '. 

In 

"  3  T.  R.   662.  and  see    1  ed  on  a  distress  for  rent,  pur- 
Bur.  358.  Cowp.  483.  suant  to  the    statute    17  Car, 
o  2  T.  R.  281.  II.  c.  7.    In  other  cases,   the 
P  If  an   issue  be  found  for  jury  find  only  damages, 
the  defendant  in  refilevi?i,  the  i  1  Str.  507. 
jury,   besides  damages,   may  "■  Comb.  11.  5  Mod.  76. 
find  the  value  of  the  distress,  ^  i  RqI.  Abr.  574.   4  Bur. 
and  the  amount  of  the  rent  in  2018.  2489. 
arrear,  if  the  action  was  found-  *  3  Bur.  179 1. 


OF   DAMAGES.  799 

In  actions  purely  real,  no  damages  are  recover- 
able '',  as  in  a  writ  of  right,  &c. ;  but  damages  may 
be  recovered  in  actions  of  a  mixed  wdXwYt,  as  in  eject- 
ment ' ,  or  in  an  assize,  or  writ  of  entry  in  nature  of 
an  assize  of  7io'uel  d isseis i?j, 'dgsiinst  the  disseisor ''' : 
And  by  the  statute  of  Gloucester ,  (6  £dw.  1.)  c.  1. 
damages  were  given  in  an  assize,  or  writ  of  entry 
upon  a  novel  disseisin,  against  the  alienee,  or  him  that 
was  found  tenant  after  the  disseisor;  and  also  in  all 
cases  where  a  man  recovered  by  assize  of  7Jiort 
d'' ancestor '',  or  upon  writs  of  cosinage,  aiel  and  be- 
saiel,  or  against  a  tenant  upon  his  own  intrusion  or 
act.  By  the  statute  Westm.  2.  (13  Edw.  1.)  c.  26. 
double  damages  are  recoverable  upon  a  writ  of  re- 
disseisin;  and  by  the  3  &  4  Edijo.  VI.  c.  3.  ^4. 
treble  damages  may  be  recovered  in  an  assize  of 
novel  disseisin,  upon  the  statutes  respecting  the  im- 
provement of  wastes  ^,  &c.  In  a  writ  of  dovjer  wide 
nihil  habet,  the  widow  is  entitled,  by  the  statute  of 
Merton,  (20  Hen.  III.)  c.  1.  to  recover  in  damages 
the  value  of  her  dower,  from  the  time  of  the  death 

of 

■^  Booth,  on  r<?a/' Actions,  74.  was     recovered    against    the 

^  3  Blac.  Com.  200,  1.  chief-lord. 

^•^  2  lust.  286.    10  Co.  Pil-  y  See    also   the    statutes  of 

fold's  case;    and   see   3  Blac.  Westm.   1.  3  Edw.  I.   c.  24. 

Com.  187,  8.  Westm.  2.  13  Edw.  I.  c.  25. 

•^  Damai>;es   had   been  be-  1    Ric.  II.  e.  9.   1    Hen.  IV. 

fore  given  in  an  assize  oi  mort  c.  8.  and  4  Hen.  IV.  c.  8.  by 

d'ancestor,   by  the  statute  of  which  double  or  treble  dama- 

-  Marlbridge,  52   Hen.   III.  c.  ges  are  given  upon  disseisir.- 

16.  in  cases  where  the  land  in  particular  cases. 


300  OF   DAMAGES. 

of  her  husband  \  In  waste,  treble  damages  are  re- 
coverable by  the  statute  of  Gloucester,  (6  Edw.  I.) 
c.  5.  to  which  costs  are  superadded,  by  the  8  &:  9 
/v.  III.  c.  11.  §  3.  But  in  an  action  of  ivaste,  on 
the  statute  of  Gloucester,  against  tenant  for  yeai's, 
for  converting  three  closes  of  meadow  into  garden 
ground,  if  the  jury  give  only  one  farthing  damages 
for  each  close,  the  court  will  give  the  defendant 
leave  to  enter  up  judgment  for  Iiimself ''.  And  by 
the  statute  M'^estJii.  2.  (13  Edw.  I.)  c.  5.  \  3.  da- 
mages are  given  in  writs  of  quare  impedit,  and 
darrein  presentment. 

In  actions  upon  the  case,  trespass,  reple'uin,  &c. 
the  damages  at  common  law  are  single,  and  propor- 
tioned to  the  injury  complained  of;  but  double  or 
treble  damages  are  sometimes  given  by  statute,  in 
cases  \\  here  single  damages  were  before  recoverable, 
as  upon  the  2  Hen.  IV.  c.  11.  for  wrongfully  suing 
in  the  admiralty  court'',  upon  the  8  Hen.  VI.  c.  9. 
for  a  forcible  entry  *",  and  upon  the  2  h  3  ff.  h  M. 
sess.  1.  c.  5.  for  rescuing  a  distress  for  rent^. 

In  an  action  of  debt  for  a  penalty,  the  damages 
at  common  law  are  merely  nominal^.  But  where 

an 

'  For   the    construction    of  '^  Bro.  Dam.  fil.  70.  10  Co. 

this  statute,  and  in  what  cases  115.  b.    Co.    Lit.   257.   b.    2 

the   widow  is  entitled  to  da-  Inst.  289.  Cro.  Eliz.  582. 

mages  thereon,  see  Co.  Lit.  ^  Carth.   321.   1   Salk.   205. 

32,  3.  1   Ld.  Raym.  19.  342.  Skin. 

a  2  Bos.  &  Pul.  86.  555.  Holt,  172.  S.  C. 

b  10  Co.  116.  Dyer,  159  b.  «  6  T.  R.  303.  but  see  2 

Cavth.  297  T.  R.  388.  7  T.  R,  446. 


GF  DAMAGES.  801 

an  action  is  brought  upon  a  bond,  for  the  non-per- 
formance of  covenants,  the  jury,  upon  the  trial  or  a 
writ  of  inquiry,  are,  by  virtue  of  the  statute  8  &:  9 
W.  III.  c.  11.  ^  8.  to  assess  not  only  the  ordinary 
damages  and  costs  of  suit,  but  also  damages  for 
such  of  the  breaches  as  the  plaintiff  proves;  and 
judgment  shall  be  entered  in  the  common  form, 
which  shall  afterwards  remain  as  a  security  to  the 
plaintiff,  against  future  breaches.  In  an  action  on  a 
charter-party,  damages  may  be  recovered  beyond 
the  amount  of  the  penalty  ^;  and  w  here  the  precise 
sum  is  not  the  essence  of  the  agreement,  the  quan- 
tum of  damages  may  be  assessed  by  the  jury;  but 
where  the  precise  sum  is  fixed  and  agreed  upon  be- 
tween the  parties,  that  sum  is  the  ascertained  da- 
mage, and  the  jury  are  confined  to  it ''. 

On  a  declaration  consisting  of  several  counts,  the 
jury  may  either  assess  intire  damages,  on  the  whole 
or  part  of  the  declaration,  or  they  may  assess  several 
damages  on  the  different  counts '.  If  intire  damages 
be  assessed,  and  any  one  or  more  of  the  counts  be 
bad  or  inconsistent,  judgment  may  be  an'csted^;  be- 
cause it  must  be  intended,  that  some  part  of  the  da- 
mages 

8  1  Blac.  Rep.  395.  and  see  '  1  Rol.  Abr.  570. /il.  I. 

3  Bur.  1345.  j  Say.  Ouju.  ch.  25.  bur  see 

^  4  Bur.    2225.  and   see  2  the  distinction  taken  in  WH- 

Bos.  8c  Ful.  346,  les,  44o. 

Vol.  II.  T 


802  OP   DAMAGES. 

mages  was  assessed  upon  those  counts.  In  order  to 
cure  this  defect,  if  there  was  evidence  given  at  the 
trial  upon  such  of  the  counts  only  as  are  good  and 
consistent,  a  general  verdict  may  be  altered,  from 
the  notes  of  the  judge,  and  entered  only  on  those 
counts  ^ ;  but  if  there  was  any  evidence,  which  ap- 
plied to  the  other  bad  or  inconsistent  counts,  (as  for 
instance  in  an  action  for  words,  where  some  action- 
able words  are  laid,  and  some  not  actionable,  in  dif- 
ferent counts  \  and  evidence  given  of  both  sets  of 
words,  and  a  general  verdict,)  there  the  postea  can- 
not be  amended ;  because  it  would  be  impossible  few 
the  judge  to  say  on  which  of  the  counts  the  jury  had 
found  the  damages,  or  how  they  had  apportioned 
them:  In  such  case,  therefore,  the  only  remedy  is 
by  awarding  a  Denire  de  nouo  '".  If  the  jury  find  a 
verdict  for  the  plaintiff  with  one  penalty  generally, 
in  a  penal  action,  and  the  plaintiff  apply  it  to  one 
count,  lie  cannot  afterwards  apply  it  to  another, 
though  the  former  is  bad  in  law,  and  though  the  evi- 
dence A\ould  have  warranted  the  verdict  on  any  other 
count ''. 

If  there  be  judgment  by  default  as  to  part,  and 
an  issue  upon  other  part,  or  in  an  action  against 
several  defendants,  if  some  of  them  let  judgment 
go  by  default,  and  others  plead  to  issue,  there 
ought  to  be  a  special  i^enirc,  as  well  to  try  the  issue 

as 

'<  1  Bos.  &  Pul.  329.  542.  6  T.  R.  694. 

'  Willes,  443.  "ST.  R.  448.  but  see  3 

™  Doug.  376.  722.  1  T.  R.     Bur.   1237.  semb.  contra. 


OF  DAMAGES.  803 

as  to  inquire  of  the  damages,  tarn  ad  triandum  qiiam 
ad  inquirendum^  and  the  jury  who  \x)'  the  issue  shall 
assess  the  damages  for  the  whole,  or  against  all  die 
defendants  ".  But  if  a  declaration  in  trespass  contain 
two  counts,  and  the  defendant  plead  to  one,  and  suf- 
fer judgment  by  default  on  the  other,  and  on  the 
trial  of  the  first,  the  plaintiif  prove  one  act  of  tres- 
pass only,  which  is  covered  by  the  second  count,  he 
is  not  entided  to  a  verdict  on  the  first  count  p.  In  the 
case  of  several  defendants,  when  those  who  plead  to 
issue  are  acquitted  at  the  trial,  the  jury,  in  some  in- 
stances, shall  assess  damages  against  the  defendants 
u^ho  let  judgment  go  by  default,  and  in  others  not. 
In  actions  upon  contract^  as  covenant  \  assumpsit  *", 
&c.  the  plea  of  one  defendant,  for  the  most  part, 
enures  to  the  benefit  of  all ;  for  the  contract  being 
intire,  the  plaintiff  must  succeed  upon  it  against  all 
or  none ;  and  therefore  if  the  plaintiff  fail  at  the  trial, 
upon  the  plea  of  one  of  the  defendants,  he  cannot 
have  judgment  or  damages  against  the  others,  who 
let  judgment  go  by  default:  But  in  actions  of  torty 
as  trespass^  &c.  where  the  wrong  is  joint  and  several, 
the  distinction  seems  to  be  this,  that  u  here  the  plea 
of  one  of  the  defendants  is  such,  as  shews  the  plain- 
tiff could  have  no  cause  of  action  against  any   of 

them, 

0  1 1  Co.  5.  2  Bos.  and  Pul.     Keb.  284.  S.  C. 

163.  :•  Cas.  Pr.  C.  B.  107.  Prac. 

P  7  T.  R.  727.  Reg.  102.  S.  C.  r>  T.  R.  662. 

1  1  I<ev.   6.^>.    1   Sid.  76.    1 


804  or  DAMAGES. 

them,  there,  if  this  plea  be  found  against  the  plaintiff, 
it  shall  operate  to  the  benefit  of  all  the  defendants, 
and  the  plaintiff  cannot  have  judgment  or  damages 
against  those  who  let  judgment  go  by  default '';  but 
where  the  plea  merely  operates  in  discharge  of  the 
party  pleading  it,  there  it  shall  not  operate  to  the 
benefit  of  the  other  defendants,  but  notwithstanding 
such  plea  be  found  against  the  plaintiff,  he  may  have 
judgment  and  damages  against  the  other  defendants  ^ 

If  there  be  a  demurrer  to  part,  and  an  issue  upon 
other  part,  or  in  an  action  against  several  defendants, 
if  some  of  them  demur,  and  others  plead  to  issue, 
the  jury  who  try  the  issue  shall  assess  the  damages 
for  the  whole,  or  against  all  the  defendants :  In  this 
case,  if  the  issue  be  tried  before  the  demurrer'is  ar- 
gued, the  damages  are  said  to  be  contingent ",  de- 
pending upon  the  event  of  the  demurrer.  But  where 
the  issue,  as  well  as  the  demurrer,  goes  to  the  whole 
cause  of  action,  the  damages  shall  be  assessed  upon 
the  issue,  and  not  upon  the  demurrer. 

Where  there  ai'e  several  defendants,  who  sever  in 
pleading,  the  jury  who  try  the  first  issue  shall  assess 
damages  against  all,  with  a  cesset  executio;  and  the 
other  defendants,  if  found  guilty,  shall  be  contri- 
te butory 

s2  Ld.  Raym.  1372.  1  Str.     ^    '2  Str.  1108.  1222. 
610.  8  Mod.  217.  S.  C.  ^  Ante,  671. 


OF  DAMAGES.  805 

butory  to  those  damages  '.  In  trespass  against  seve- 
ral defendants,  who  join  in  pleading,  if  the  jury  on 
the  trial  find  them  all  jointly  guilty,  they  cannot  as- 
sess several  damages  ■.  But  they  may  find  some  of 
them  guilty,  and  acquit  others;  in  which  case,  the 
damages  can  be  assessed  against  those  only  w  ho  are 
found  guilty :  Or  they  may  find  some  of  the  defen- 
dants guilty  of  the  whole  trespass,  and  others  of  a 
part  only  '';  or  some  of  them  guilty  of  part,  or  at  one 
time,  and  the  rest  guilty  of  other  part,  or  at  another 
time ' ;  in  either  of  which  cases,  they  may  assess 
several  damages.  And  ^vhere  in  an  action  against 
several  defendants,  the  jury  by  mistake  have  assess- 
ed several  damages,  the  plaintiff  may  cure  it,  by  en- 
teri;ig  a  nolle  prosequi  as  to  one  of  the  defendants,  and 
taking  judgment  against  the  others  ';  or  he  may  enter 
a  remittitur  as  to  the  lesser  damages  ^\  or  even  with- 
out entering  a  remittitur^  he  may  take  judgment 
against  all  the  defendants,  for  the  greater  damages  '\ 

Where 

^  11  Co.  5.  If  A.  recover  in  see  1  Str.  79.  2  Str.  1140. 

tort    against   two   defendants,  =^  Cro.  Eliz.  860.    11  Co.  5. 

and  levy  the  whole  damages  Sty.  Rep.  5. 

on  one  of  them,  that  one  can-  y  1 1    Co.   6.  Brownl.   233. 

not  recover  a  moiety  against  Cro.  Car.  54. 

the  other  for  his  contribution  ;  ^    11  Co.  5.  Cro.  Car.  239. 

alitcr  in   asHumlisit.   8    T.   R.  243.  Carth.  19. 

186.  all   Co.   7.    a.  Cro.    Car. 

w   Cro.    Eliz.  860.    11    Co.  192.    1  Wils.  30. 

5.  1  vStr.  422.  2  Str.  910.  5  ^  Id.  ibid. 

Bur.  2792.  6  T.  R.   199.  but 


806  or   SPECIAL   VERDICTS. 

Where  the  jury,  upon  the  trial  of  an  issue,  have 
omitted  to  assess  the  damages,  we  have  before  seen 
in  what  cases  the  omission  may  be  suppUed,  by  a 
VvTit  of  inquiry ".  Where  the  jury  give  greater  da- 
mages dian  the  plaintiff"  has  declared  for,  it  may  be 
cured  by  entering  a  remittitur  of  the  surplus,  before 
judgment '^;  or  the  plaintiff  may  amend  his  declara- 
tion, and  have  a  new  trial  •".  And  in  an  action  for  a 
mayhem^  the  damages  may  be  increased  by  the 
court,  on  view  of  the  party  '". 

On  a  general  verdict,  if  false,  the  jury  were  liable 
to  be  attainted^.  To  relieve  them  from  this  diffi- 
culty, it  was  enacted  by  the  statute  oiWestm.  2.  (13 
EdiM.  1.)  c.  30.  \  2.  "  that  the  justices  of  assize 
*'  shall  not  compel  the  jurors  to  say  precisely  whc- 
"  ther  it  be  disseisin  or  not,  so  as  they  state  the 
*'  truth  of  the  fact,  and  pray  the  aid  of  the  justices; 
"  but  if  they  will  say,  of  their  own  accord,  that  it  is 
"  disseisin,  their  verdict  shall  be  admitted  at  their 
'*  own  peril."  Upon  this  statute,  it  has  become  the 
practice  for  the  jury,  when  they  have  any  doubt  as  to 
the  matter  of  law,  to  find  a  special  verdict,  stating  the 
facts,  and  referring  the  law  arising  thereon  to  the  de- 
cision of  the  court;  by  concluding  conditionally,  that 
if  upon  the  whole  matter  alleged,  the  court  shall  be 

of 

c  Ante^  516,  Sec  ^  1  Ld.  Raym.  176.  3  Salk. 

<!  Yelv.   45.  2    Str.  1110.     115.  S.C.  1  Wils.   5.  Barnes, 

1171.  153. 

^^  Jn(e,  652,  o.  g  Gilb.  C.  P.  71. 


I 


OF   SPECIAL   VERDICTS.  807 

of  opinion,  that  the  plaintiff  had  cause  of  action,  they 
then  find  for  the  plaintiff;  if  otherwise,  then  for  the 
defendant ".  In  finding  special  verdicts,  where  the 
points  are  sing-le  and  not  complicated,  and  no  special 
conclusion,  the  counsel  (if  required,)  are  to  sub- 
scribe the  points  in  question,  and  agree  to  amend 
omissions  or  mistakes  in  the  mesne  conveyance,  ac- 
cording to  the  truth,  to  bring  the  point  in  question 
to  judgment':  Arid  unnecessary  finding  of  deeds 
hi  licec  verba,  where  the  question  rests  not  upon 
them,  but  which  are  only  derivation  of  title,  ought 
to  be  spared,  and  stated  shortly,  according  to  the 
substance  they  bear  in  reference  to  the  deed,  as  feofi"- 
ment,  lease,  grant ',  &:c.  It  is  also  a  general  rule,  that 
in  a  special  verdict,  the  jury  must  find  facts,  and  not 
merely  the  evidence  of  facts  ^ :  And  if  in  this,  or  any 
other  particular,  the  verdict  be  defective,  so  that  the 
court  are  not  able  to  give  judgment  thereon,  they 
will  amend  it,  if  possible,  by  the  notes  of  coun- 
sel, or  even  by  an  affidavit  of  what  was  proved 
upon  the  trial '' ;  or  otherwise,  they  will  supply  the 
defect,  by  awarding  a  nicnire  de  novo  \ 

If  there  be  a  special  verdict,  the  plaintiff's  at- 
torney generally  has  it  drawn,   from  the  minutes 

taken 

•'  3  Blac  Com.  377,  8.  and  S.  C.  1  East,  1  H. 

see  Append.  Chap.  XXXVII.  ^  Jnte,  662. 

§  41.  12  Ld.  Raym.   1521.   1584. 

iR.  M.  1654.  §  20.  2  Str.  887.  S.  C.   1124.  S.   P 

J  1   Wils.  48.  2   Str,    1185.  1  i:ast,  111. 


808  OF    SPECIAL    CASES. 

taken  at  the  trial,  and  settled  by  his  counsel,  who 
signs  the  draft.  It  is  then  delivered  over  to  the  op- 
posite attorney,  who  gets  his  counsel  to  peruse  and 
sign  it;  and  \vhen  the  verdict  is  thus  settled  and 
signed,  it  is  left  with  the  clerk  of  nisi  prius  in  a  town 
cause,  or  with  the  associate  in  the  country,  who 
makes  copies  for  each  party.  The  whole  proceed- 
ings are  then  entered,  docketed,  and  filed  of  record; 
after  ^\  hich  a  concilium  is  moved  for,  a  rule  drawn 
up  thereon  with  the  clerk  of  the  rules,  the  cause  en- 
tered with  the  clerk  of  the  papers,  copies  of  the  re- 
cord made  and  delivered  to  the  judges,  and  counsel 
instructed  and  heard,  in  like  manner  as  upon  argu- 
ing a  demurrer"';  only  that  a  special  verdict  must 
be  set  down  in  the  paper  for  argument  within  four 
days  ",  and  cannot  be  set  down  afterwards,  without 
leave  of  the  court".  After  judgment  given,  the  pre- 
vailing party  is  immediately  entitled  to  tax  his  costs, 
and  take  out  execution,  without  a  rule  for  judg- 
ment; but  the  other  party  may  have  a  rule  to  be  pre- 
sent at  taxing  costs ''. 

Another  method  of  finding  a  species  of  special 
verdict,  is  when  the  jury  find  a  verdict  generally 
for  either  party,  but  subject  nevertheless  to  the 
opinion  of  the  court  above,  on  a  special  case, 
stated  by  the  counsel  on  both  sides,  with  regard 
to    a   matter    of  law;   which   has    this    advantage 

over 

m  Ante^  685,  6.  o  Imp.  K.  B.  352. 

^  Bur.  in  firef.  IV.  v  Id.  ibid. 


OF   SPECIAL   CASES.  809 

over  a  special  verdict,  that  it  is  attended  with  much 
less  expence,  and  obtains  a  speedier  decision;  the 
postea  being  stayed  in  the  hands  of  the  officer  of 
nisi  prius,  till  the  question  is  determined,  and  the 
verdict  is  then  entered  for  the  plaintiff  or  defendant; 
as  the  case  may  happen.  But  as  nothing  appears 
upon  the  record  but  the  general  verdict,  the  parties 
are  precluded  hereby  from  the  benefit  of  a  writ  of 
error,  if  dissatisfied  with  the  judgment  of  the  court 
upon  the  point  of  law  '^. 

In  a  special  case,  as  in  a  special  verdict,  the  facts 
proved  at  the  trial  ought  to  be  stated,  and  not  merely 
the  evidence  of  facts  '.  It  is  usually  dictated  by  the 
court,  and  signed  by  the  counsel,  before  the  jury  are 
discharged ;  and  if  in  settling  it,  any  difference  arises 
about  a  fact,  the  opinion  of  the  jury  is  taken,  and  the 
fact  stated  accordingly  '.  For  the  argument  of  a  spe- 
cial case,  the  same  steps  must  be  taken,  as  for  that  of 
a  special  verdict,  except  that  it  is  not  entered  of  re- 
cord. But  it  is  a  rule,  that  all  special  cases  to  be  set 
down  by  the  clerk  of  the  papers  to  be  argued,  must 
be  entered  within  the  four  first  days  of  the  term 
next  after  the  trial,  at  which  such  special  cases 
shall  have  been  reserved;  and  that  such  special  cases 
shall  never  be  set  down  for  argument,  on  any  of 
the  four  last  days  of  the  term  \  In  arguing  a  spe- 
cial 

'1  3  Blac.  Com.  378.  ^  1  Bur.  in /iref.  IV. 

'•2WiIs.  163.  t  R.  M.  38  Geo.  III. 

Vol.  IL  U 


810  OF  SFECIAL  CASES. 

cial  case,  the  counsel  are  not  permitted  to  go  out  of 
it,  and  the  court  must  judge  upon  it  as  stated  ":  If 
it  be  mis-stated,  the  parties  must  apply  to  amend;  or 
if  it  be  so  defective,  that  the  court  are  not  able  to 
give  judgment,  they  will  grant  a  new  trial,  in  order 
to  have  it  re- stated  ^. 

Upon  trial  of  the  issue,  a  case  was  made,  and  af- 
terwards argued  in  court,  but  the  fact  not  being  suf- 
ficiently stated,  so  as  tlie  court  could  give  judgment 
according  to  the  justice  of  the  cause,  it  was  recom- 
mended to  the  parties,  and  accordingly  they  agreed 
to  go  to  a  new  trial,  when  the  plaintiff  was  nonsuit- 
ed :  and  the  question  being  about  the  costs,  whether 
the  master  should  tax  the  common  costs  of  a  non- 
suit, or  take  into  his  consideration  all  the  former 
proceedings;  upon  motion  for  the  court's  direction 
to  the  master,  it  was  ordered,  that  he  should  tax 
the  defendant  his  costs  upon  the  whole,  as  well 
with  relation  to  the  first  trial,  as  the  last '".  From 
the  statement  of  this  case,  it  does  not  appear  whe- 
ther, upon  granting  a  new  trial,  any  thing  was  said 
about  the  costs  of  the  former  trial,  or  whether  they 
were  directed  to  abide  the  event  of  the  suit:  If 
they  were  not,  it  seems  from  subsequent  cases  % 
that  at  this  day  they  would  not  have  been  allowed. 
But  where,  after  the  argument  of  a  special  case,  the 
court  directed  a  new  trial,  because  the  case  was  in- 
sufficiently 

^  1  Bur.  617.  "3   T.   R.  507.  6  T.  R.  71. 

V  1  Str.  300.  3  T.  R.  507.      Post.  823,  4. 
w  1  Str.  300. 


OF  THE  POSTEA.  811 

sufficiently  stated;  and  the  defendant,  without  going 
to  trial  again,  gave  the  plaintiff  a  cogno'oit;  the  court 
held,  that  the  defendant  was  liable  to  pay  the  costs 
of  the  former  trial  ^, 

The  verdict,  whether  general  or  special,  nonsuit, 
&c.  is  entered  on  the  back  of  the  record  of  nisi 
prtus;  which  entry,  from  the  latin  word  it  began 
with,  is  called  the  postea  ^  When  the  cause  is  tried 
at  the  sittings  in  London  or  Middlesex^  the  associate 
delivers  the  record  to  the  attorney  of  the  party  for 
whom  the  verdict  is  given,  and  he  afterwards  in- 
dorses the  postea^  from  the  associate's  minutes,  on 
the  panel;  but  when  the  cause  is  tried  at  the  assizes, 
the  associate  keeps  the  record  till  the  next  term,  and 
then  delivers  it,  with  the  postea  indorsed  thereon,  to 
thfe  party  obtaining  the  verdict.  On  a  motion  for 
a  new  trial,  the  postea  was  brought  into  court,  and 
after  the  new  trial  had  been  denied,  the  postea 
could  not  be  found;  the  court  on  debate  ordered 
a  new  one  to  be  made  out,  from  the  record  above, 
and  the  associate's  notes*.  If  the  postea  be  wrong, 
it  may  be  amended  by  the  plea-roll,  by  the  memory 
or  notes  of  the  judge,  or  by  the  notes  of  the  associate 
or  clerk  of  assize  ^  But  the  court  will  not,  at  a  dis- 
tance 

y  6  T.  R.  144.  8cc.  and  for  the  defendant  on 

^  For  the  form  of  the  fioatea  a  nonsuit  or  verdict  in  assum/i- 

on  a  verdict  hr  the  /i/airitiff]  in  sic,  8cc.  Id.  §  27,  8tc. 

as8U7n/isit,  debt,  case,  refilevin,  »  2  Str.  1264. 

tres/iass,    and    ejectment,    see  '^  ^nte,  662. 

Append.  Chap.  XXXVII.  §  1, 


812  OF  THE  POSTEA. 

tance  of  time  after  the  trial,  amend  the  postea,  by 
increasing  the  damages  given  by  the  jury;  although 
all  the  jurymen  join  in  an  affidavit,  stating  theii'  in- 
tention to  have  been,  to  give  the  plaintiff  such  in- 
creased sum,  and  that  they  conceived  the  verdict 
they  had  found  was  calculated  to  give  him  such 
sum  ^ 

=  2  T.  R.  281. 


CHAP- 


[     813     ] 


CHAPTER  XXXVIII. 

O/'New  Trials;  ^«^  Arrest  of  Judgment, 

\  FTER  a  general  verdict,  or  upon  a  writ  of  in- 
quiry,  either  on  demurrer  or  judgment  by  de- 
fault ^,  it  is  incumbent  on  the  prevailing  party  to 
enter  a  rule  for  judgment  nis'i  causa,  on  tht  postea  or 
inquisition,  with  the  clerk  of  the  rules.  This  rule 
expires  in  four  days'"  exclushe  after  it  is  entered; 
and  Sunday  %  or  any  other  day  on  which  the  court 
doth  not  sit,  is  not  reckoned  one  of  the  four  days, 
unless  the  rule  be  entered  on  the  last  day  of  the 
term,  or  within  four  days  after;  during  which  four 
days,  it  is  the  practice  to  enter  these  rules,  as  of  the 
last  day  of  the  term;  and  at  the  expiration  of  four 
days  exclusive  after  entering  such  rule,  if  no  suffi- 
cient cause  be  shewn  to  the  contrary,  judgment  may 
be  entered  \  The  rule  for  judgment  ought  not  to  be 
entered  before  the  day  in  bank ;  and  it  is  not  neces 

sary 

a  1  Salk.  399.  after  the  return  of  the  fiabeas 

^  3  Salk.  215.  6  Mod.  241.  corpora  Juratorum,    does    not 

c  4  Bur.  2130.  extend  to  a  case  where  the 

<!  R.  E.  5  Geo.  II.  reg.  3.  term  closes   before  the   four 

(a).  The  rule  in  the  common  days  are  expired.  2  Bos.    & 

pleas,  that  final  judgment  can-  Pul.  393. 

not  be  signed  till  four  days 


814  or   NEW   TRIALS. 

sary  if  the  plaintifF  be  nonsuited,  for  in  that  case 
judgment  may  be  entered  immediately  after  the  day 
in  bank  ^ 

Within  the  time  limited  by  the  rule,  the  unsuc- 
cessful party  may  move  the  court  for  a  new  trial,  or 
inquiry;  or  in  arrest  of  judgment;  or  for  judgment 
non  obstante  'veredicto^  a  repleader,  or  s)enire  facias 
de  no'vo, 

'I'he  first  instance  to  be  met  with  in  the  books,  of 
a  new  trial  on  the  evidence,  was  in  the  case  of  Wood 
and  Gunston^  A.  D.  1665  ^,  But  Holt^  Ch.  J.  seems 
to  have  been  of  opinion,  that  new  trials  were  more 
ancient,  from  the  challenge  to  be  met  with  in  the  old 
books,  that  the  juror  had  before  given  a  verdict  in 
the  same  cause  ^ ;  Yet  it  does  not  from  thence  fol- 
low, that  the  court  granted  a  new  trial  upon  the  evi- 
dence; for  it  might  appear  to  be  a  mis- trial  upon  the 
record,  or  there  might  be  other  reasons  for  awarding 
a  venire  facias  de  ?iovo  ^. 

But  whatever  might  have  been  the  origin  of  the 
practice,  trials  by  jury  in  civil  causes  could  not 
subsist  now,  without  a  power  somewhere  to  grant 
new  trials.  If  an  erroneous  judgment  be  given  in 
point  of  law,  there  are  many  ways  to  review  and 

set 

e   R.   E.   5  G.  II.  reg.  3.         s  2  Salk.  648.  and  see  6  T. 
(a).  R.  622,  3. 

f  Sty.  Rep.  462.  466.  ^  2  Str.  995. 


OF   NEW   TRIALS.  815 

set  it  right.  Where  a  court  judges  of  facts  upon 
depositions  in  writing,  their  sentence  or  decree  may 
many  ways  be  reviewed  and  set  right.  But  a  general 
verdict  can  only  be  set  right  by  a  new  trial;  which 
is  no  more  than  having  the  cause  more  deliberately 
considered  by  another  jury,  when  there  is  a  reason- 
able doubt,  or  perhaps  a  certainty,  that  justice  has 
not  been  done.  The  writ  of  attaint  is  now  a  mere 
sound  in  every  case ;  in  many  it  does  not  pretend  to 
be  a  remedy.  There  are  numberless  causes  of  false 
verdicts,  without  corruption  or  bad  intention  of  the 
jurors:  They  may  have  heard  too  much  of  the  mat- 
ter before  the  trial,  and  imbibed  prejudices  without 
knowing  it.  The  cause  may  be  intricate:  The  ex- 
amination may  be  so  long,  as  to  distract  and  con- 
found their  attention.  Most  general  verdicts  include 
legal  consequences,  as  well  as  propositions  of  fact: 
In  drawing  these  consequences,  the  jury  may  mis- 
take, and  infer  directly  contrary  to  law.  The  parties 
may  be  surprised,  by  a  case  falsely  made  at  die 
tiial,  which  they  had  no  reason  to  expect,  and  there- 
fore could  not  come  prepared  to  answer.  If  unjust 
verdicts,  obtained  under  these  and  a  thousand  like 
circumstances,  were  to  be  conclusive  for  ever,  the 
determination  of  civil  property,  in  this  method  of 
trial,  would  be  very  precarious  and  unsatisfactory  '. 

It 

i  1  Bur.  39.-^ 


816  OF   NEW   TRIALS. 

It  was  not  formerly  usual  to  grant  a  new  trial  in 
.yect7nent  ^,  or  after  a  trial  at  bar  \  nonsuit "',  or  two 
concurring  verdicts  ";  but  for  the  sake  of  obtaining 
justice,  it  may  be  now  had  in  these  as  well  as  in 
other  cases ".  Where  there  are  two  contrary  verdicts, 
It  is  not  of  course  to  grant  a  third  trial,  but  the  court 
in  their  discretion  will  grant  or  refuse  it,  according 
to  circumstances;  there  being  no  rule,  either  at  law 
or  in  equity,  which  entitles  the  losing  party  in  that 
case  to  the  benefit  of  a  third  trial,  if  the  second  ver- 
dict be  satisfactory  to  the  court  p.  In  an  inferior 
court,  a  verdict  cannot  be  set  aside,  and  a  new  trial 
had,  upon  the  merits,  but  only  for  irregularity  "^ :  An 
inferior  court,  however,  has  power  to  set  aside  a 
regular  interlocutory  judgment,  in  order  to  let  in  a 
trial  of  the  merits. 

The  principal  grounds  or  reasons  for  setting  aside 
a  verdict  or  nonsuit,  and  granting  a  new  trial,  are 
first,  the  want  of  due  notice  of  trial';  but  if  the 
defendant  appear  and  make  defence,  he  shall  not 

have 

s2Salk.  648,  4    Bur.    1986.    2   Blac.    Rep. 

17  Mod.   37.    155.   2    Salk.  698.  3  Wils.    146.   338.  after 

550.  S.  C.  a  7ionsuit;  4   Bur.    2109.  1  T 

i^'  1  Blac.  Rep.  532.  R.   171.  after  two  concurriiit^ 

•^  6  Mod.  22.  2   Salk.   649.  verdicts, 

i  Str.  692.  i'  2  Blac.  Rep.  963. 

°  2  Sir.  1105.  4  Bur.  2224.  ^2   Salk.   650.    1    Str.   I]?. 

in   ejectment;  Sty.    Rep.   462.  392.  499. 

466.  1  Str.  584.  2  Ld.  Raym.  ^  1  Bur.  571. 

1358.  S.  C.  2   Str.    1105.    1  '•  Bill.  .\7.  Pr/.  .327. 
Bur.  '^'}5.  after  a  trial  at  bar^ 


OF  NEW   TRIALS.  817 

have  a  new  trial  on  that  ground  \  Secondly,  for  wunt 
of  a  proper  jury;  as  where  one  of  the  jurymen  w^^s 
not  returned  on  the  nisi  priiis  panel,  but  answered  to 
the  name  of  a  person  who  was  ' .  Thirdly,  the  mibtje- 
haviour  of  the  prevailing  party,  towards  the  jury  or 
witnesses '';  but  merely  desiring  a  juror  to  appear,  is 
no  cause  for  setting  aside  the  verdict'.  Fourthly , 
the  misbehaviour  of  the  jury,  in  castin.^  lots  for  thtir 
verdict ",  Sec :  But  the  court  will  not  receive  an  affi- 
davit of  misbehaviour  from  any  of  the  jurymen 
themselves,  in  all  of  whom  such  conduct  is  a  very 
high  misdemeanor  -  ;  nor  will  they  suffer  the  jury  to 
explain  by  affidavit  the  grounds  of  their  verdict, 
or  to  shew  that  they  intended  something  different 
from  what  they  found  ^.  Fifthly,  the  court  \\  ill 
sometimes,  though  rarely,  grant  a  new  trial,  on  ac- 
count of  the  unavoidiible  absence  of  the  attornies  or 
witnesses ",  or  upon  the  discovery  of  new  and  ma- 
terial evidence,  since  the  trial'':  But  a  new  trial  is 
never  granted  for  the  default  or  omission  of  the 
parties,  their  counsel  or  attornies,  in  not  coming 
prepared  with,  or  going  into  evidence  which  they 
were  apprised  of,  and  might  have  produced  at  the 

former 

t  2  Salk.  6'1  G.  Bui.  A7.  Pri.  .326. 

"  Willes,  484.  Barnes,  453.  y  Say.  Rep.  100.  1  T.R.  11. 

S.  C.  and  see  4  T.   R.  473.  '■■  5  Bur.  2667.  2  Bkt.  Rep. 

^nte^  524.  Post,  838  (a).  803.   2  T.    K    281.  but  see  1 

V  7  Mod.  156.  Bur.  383.  srmb.  com ra. 

w  1  Str.  643.  a  2  Salk.  645.   6   Mod.  22. 

=<  2  Salk.    645.   1  Str.    642.  i>  2  Blac.  Rep.  955. 

Vol.  II.  X 


818 


or    NEW   TRIALS. 


former  trial '' ;  or  because  a  witness  has  either  from 
inattention,  or  the  want  of  being  prepared,  made  a 
mistake  in  giving  his  evidence*^;  or  on  account  of 
an  o!)jection  to  the  competency  of  witnesses,  disco- 
vered after  the  trial  ".  Sixthly,  the  misdirection  of 
the  judge  is  a  good  ground  for  a  new  trial  ^;  or  his 
admitting  or  refusing  evidence  contraiy  to  law  ^. 
But  it  is  no  ground  ibr  the  court  to  grant  a  ne\^^  trial, 
that  a  witness  called  to  prove  a  certain  fact  was  reject- 
ed, on  a  supposed  ground  of  incompetency,  where 
another  witness  ^vho  was  called  established  the  same 
fact,  which  was  not  disputed  by  the  other  side;  and 
the  defence  proceeded  upon  a  collateral  point,  on 
which  the  verdict  turned.  3  East,  451.  Seventhly, 
a  new  trial  may  be,  and  is  commonly  moved  for,  on 
account  of  the  error  or  mistake  of  the  jury,  in  finding 
a  verdict  without,  or  contrary  to  evidence'';  but 
where  there  is  evidence  on  both  sides,  it  is  not  usual 
to  grant  a  new  trial ',  unless  the  evidence  for  the  pre- 
vailing party  be  very  slight,  and  the  judge  declare 
himself  dissatisfied  with  the  verdict  ^i  And,  except 
where  a  point  has  been  saved  at  the  trial '%  it  is  a 
general  rule,  not  to  grant  a  new  trial,  except  for 
the  misdirection  of  the  judge  \  and  in  a  penal "",  hard, 

or 


^  2  Salk.  647.  653,  6  Mod. 
22.    1   Str.    691.    I    Wils.  98. 

1  Blac.  Rep.  298.  2  Blac. 
Rep.    802,    3.    1    T.    R.    84. 

2  T.  R.  113.  But  the  court 
of  Common  Pleas  will  grunt 
a  new  trial,  if  tiie  testimony 
of  witnesses,  on  which  a  ver- 
dict has  proceeded,  be  found- 
ed on  and  derive  its  credit  from 
particular  circumstances,  and 
those  circumstances  be  after- 
wards clearly  falsified  by  affi- 
davit. 1  Bos.'Sc  Pul.  427. 

•^  Say  Rep.  27. 


e  1  T.  R.  717.  1  Bos.  8c  Pul. 
429.  (a). 

f  2  Salk.  649.  2  Wils.  273. 

g  6  Mod.  242. 

^  1  Bur.  12.54.2  Bur.  665. 
936. 

i  2  Str.  1106.  1142.  1  Wils. 
22.  3  Wils.  47. 

J  Say.  Rep.  264.  and  see  3 
Wils.  38,  9. 

i^  1  Bos.  &  Pul.  338,  9. 

I  4  T.  R.  753.  5  T.  R. 
19. 

'"  2  Str.  899.  1238.  1  Wils. 
17.  3  Wils.  59. 


''  OF   NEW   TRIALS.  819 

or  trifling  action ",  after  a  verdict  for  the  defendant ; 
nor  after  a  verdict  forlbeplainiiff,  where  the  defence 
is  unconscionable  ",  and  the  verdict  is  found  accord- 
ing to  tiie  justice  and  honest}'  of  the  case  ■'.  Eiglithly, 
a  new  trial  may  be  had  for  excessiiie  damages  "^ ;  but 
in  that  case,  the  damages  oiight  not  to  be  weighed 
in  a  nice  balance,  but  must  be  such  as  appear  at  first 
blush  to  be  outrageous,  and  indicate  passion  or  par- 
tiality in  the  jury.  And  where  a  new  trial  is  granted 
for  excessive  damages,  the  former  verdict  stands  as  a 
security  in  the  mean  time,  for  the  damages  which 
may  be  given  on  the  second  trial  ^  It  is  not  usual  to 
grant  a  new  trial  for  smallness  of  damages ';  though 
inquisitions,  on  writs  of  inquiry,  have  been  some- 
times set  aside  on  that  ground  ^ 

A  new  trial  cannot  be  granted  in  chil  cases,  at 
the  instance  o^  one  of  several  defendants  ";  nor  for  a 

pan 

n  2  Salk.  644.  648.    653.    1  1  Bos.  Sc  Pul.  338. 

Bur.  12.54.  664.3  Bur.  1306.  q  1  SU'.  692.  1  Bur.  609.  2 

2  Blac.  Rep.   851.  Cowp.   37.  Wils.  160.205.244.252.  405. 

And  an  action  is  considered  as  3  Wils.  18.  62.  2  Blac.  Rep. 

triflinj^  in  this  respect,  where  929.  942.  1327.  Cowp.  230.  1 

the  sum  to  be  recovered  is  un-  T.  R.  277.  4  T.  R.  65  1.  5  T. 

der  20/.   Taylor  v.  Greeii,   H.  R.  257.  7  T.  R.  529. 

38  G.  III.  '    7  T.  R.  529. 

o  2  Salk.  644.  646,  7.  1  Bur.  ^  2  Salk.  647.   2    Str.  940. 

12.   54.   2  Bur.  664.  4  T.   R.  105  1. 

468.  t  Jlntc^  524. 

P  2  Bur.  936.  2  Wils.  306.  "  3  Salk.  361.  12  Mod.  275. 

362.  2  T.  R.  4.  4  T.  R.  468.  2  Str.  814. 


82(:)  OF   NEW   TRIALS. 

part  only  of  the  cause  of  action":  and  therefore, 
where  one  issue  out  of  four  was  found  against  evi- 
dence, the  court  granted  a  new  trial,  not  only  as  to 
such  issue,  for  that  they  said  could  not  be,  but  for  the 
whole  \  But  then,  the  issue  found  against  evidence 
must  be  a  material  one ;  for  if,  out  of  three  issues, 
two  are  found  against  evidence,  yet  if  the  material 
issue  in  the  cause  be  agreeable  to  evidence,  the  court 
will  not  grant  a  new  trial ''.  In  criminal  cases,  where 
several  defendants  are  tried  at  the  same  time  for  a 
misdemeanor,  and  some  are  acquitted,  and  some  con- 
victed, the  court  may  grant  a  new  trial  as  to  those 
convicted,  if  they  think  the  conviction  improper  y. 

The  motion  for  a  new  trial  must  be  made  with- 
in four  da}s  exchisiDe  after  the  entry  of  a  rule  for 
judgment  ^ ;  and  if  it  be  not  made  within  that  time, 
the  party  complaining  cannot  afterwards  be  heard, 
on  the  subject  of  a  new  trial  *:  and  there  is  no  dif- 
ference in  this  respect  between  civil  and  criminal 
cases  ';  though  in  the  latter,  where  the  court  have 
seen  of  themselves,  or  it  has  appeared  to  them 
on  the  suggestion  of  counsel,  that  substantial  jus- 
tice has  not  been  done,  they  have  sometimes  inter- 
posed 

V  2  Bur.  1224.  1  Blac.  Rep.  25  Geo.  II.  Bui.  M.  Pri.  326. 

298.  S.  C.  y6  T.R.  619. 

w  Rexw  Pool,  E.  1734.  Bui.  ^  Doug.  171. 

Ki.  Pri.  326.  a  5  T.  R.  436. 

^  Dexter   v.   Parrowby,  E.  ^  Id.  ibid. 


OF  NEW  TRIALS.  821 

posed  after  the  regular  time,  and  granted  a  new  trial  '^. 
It  is  a  general  rule,  that  the  party  shall  not  move  for 
a  new  trial,  after  he  has  moved  in  arrest  of  judg- 
ments^: This  rule  however  extends  only  to  cases, 
where  the  party  has  knowledge  of  the  fact,  at  die 
time  of  moving  in  arrest  of  judgment;  therefore  a  new 
trial  was  granted,  after  such  a  motion,  on  affidavits  of 
two  of  the  jury,  that  they  drew  lots  for  their  verdict  ^ 
And  where  the  defendant,  pending  his  motion  for  a 
new  trial,  served  the  plaintiff  with  a  copy  of  an  al- 
lowance of  a  writ  of  error,  the  court  held  this  to  be 
an  admission  of  the  facts  of  the  case,  and  refused  to 
grant  a  new  trial  ^ 

An  affidavit  is  necessary  to  move  for  a  new  trial, 
unless  the  ground  of  it  appears  on  the  face  of  the  evi- 
dence :  and  the  rule,  if  granted,  is  a  rule,  to  shew  cause ; 
on  obtaining  which,  application  should  be  made  to  the 
judge  who  tried  the  cause,  for  his  report  of  the  evi- 
dence, and  if  he  be  not  of  the  same  court,  his  clerk 
will  deliver  it  to  the  puisne  judf^e  of  the  court  in  u  hich 
the  action  is  brought.    If  the  judge  who  tried  tlie 

cause 

^  2   Str.    845.  995.    2  Bur.  (ju.    whether    such    affidavits 

1189.  Doug.    171.  797.   5  T.  would  now  be  received?  Jnte, 

R.436,  7.    1  East,  146.  817. 

d  2  Salk.  647.  1  Bur.  334.  ( Bennet  v.  Hunt,  T.    15  G. 

-,Bul.  J^i.   Pri.  S25,  S.  but  III. 


*22  Of    NEW   TRIALS. 

t;ause  declare  himself  satisfied  with  the  verdict,  it 
hath  been  usual  not  to  grant  a  new  trial,  on  account  of 
its  being  against  evidence :  On  the  other  hand,  ii"  he 
declare  himself  dissatisfied  with  the  verdict,  it  is 
pretty  much  of  course  to  grant  it  ^.  In  a  case  where 
a  judge  only  reported  evidence,  without  declai'ing 
.  himself  to  be  satisfied  or  dissatisfied  with  the  ver- 
dict, the  court  were  under  difficulty  how  to  act :  they 
seemed  inclined  however  to  hear  it  spoken  to;  but 
through  their  interposition,  the  paities  agreed  to 
abide  by  the  determination  of  the  point  of  law  ''. 

The  granting  of  a  new  trial  is  either  without,  or 
upon  payment  of  the  costs  of  the  former  trial,  or  such 
costs  are  directed  to  abide  the  event  of  the  suit,  or 
nothing  is  said  respecting  them.  If  a  new  trial  be 
granted  for  irregularity,  the  costs  of  the  former  tri- 
al ought  not  to  be  paid  ' ;  and  the  party  applying 
is  in  such  case  entitled  to  the  costs  of  the  ap- 
plication. Where  the  plaintiff  has  been  nonsuited, 
by  the  mistake  of  the  judge  in  point  of  law,  the 
court  have  in  several  instances  ordered  the  nonsuit 
to  be  set  aside,  without  costs  ^ ;  and  verdicts  have 
been  set  aside  in  a  similar  manner,  when  they  have 
been  obtained   by  unfair  practice  '',  or  contrary  to 

law 

%  Bui.  AV.  Pri.  327.  J  1  Blac.    Rep.    670.    Say. 

'i  Rex  V.  Philips  23  Geo.  .  Costs,  189.  .3  Wils.  146.  ".38 
II.  Bui.  AiPn.  327.  '^  1  Bur.  3.^2. 

■'  12  Mod.  57U. 


OF   NEW    TRIALS.  823 

law  and  the  judge's  direction ':  But  generally  speak- 
ing, where  a  new  trial  is  granted  for  the  error  or  mis- 
take of  the  jury,  either  in  finding  a  verdict  without 
or  contrary  to  evidence,  or  in  giving  excessive  da- 
mages, it  is  always  upon  payment  of  the  costs  of  the 
former  trial "'. 

On  granting  a  new  trial  for  the  misbehaviour  of 
the  jury,  the  costs  of  the  former  trial  were  directed 
to  abide  the  event  of  the  suit ".  And  upon  setting 
aside  a  nonsuit,  when  the  costs  are  directed  to 
abide  that  event,  though  the  plaintiff  succeed  on  the 
second  trial,  he  is  not  entided  to  the  costs  of  the  first; 
neither  is  the  defendant  in  such  case  entitled  to  the 
costs  of  the  first  trial :  but  when  the  same  party  suc- 
ceeds on  both  trials,  he  is  entitled  to  the  costs  of  both". 
Where  the  costs  of  the  former  trial  are  not  ordered  to 
be  paid,  nor  directed  to  abide  the  event  of  the  suit, 
they  shall  not  be  allowed,  though  the  verdict  has  gone 
the  same  way,  unless  it  be  so  expressed  in  the  rule 
granting  the  new  trial ;  and  if  the  rule  be  silent  in 
that  respect,    the  costs  of  the  first  trial  are  never 

allowed, 

1  Say.  Costs,    189.    2   Bur.     665.   K.  B.  Pr.  Reg.   408.  C. 
1224.     1  Blac.   Rep.  298.  S.     B.  and  see  1  T.  R.  20. 
C.    1    Blac.    Rep.  670.  S.  P.         "  1  Str.  642.  and  see  Willes, 

"»    12     Mod.     370.      1    Str.     488. 
642.      1  Bur.  12.  39"..   2  Bur.         »  8  T.  R.  619.    1  East,  114 

fr7).  S.C.  cited. 


824  OF  ARREST  OF  JUDGMENT,  SlC. 

allowed,  whichever  way  the  verdict  may  go  upon  the 
second  trial  ^. 

If  the  verdict  or  nonsuit  be  set  aside,  and  a  new 
trial  granted,  the  rule  for  that  purpose  should  be 
drawn  up  and  served ;  and  if  it  be  on  payment  of 
costs,  they  must  be  forthwith  paid,  (the  rule  being 
conditional.)  or  the  prevailing  party  may  move  the 
court  for  leave  to  enter  up  judgment,  and  take  out 
execution.  In  order  to  proceed  to  a  new  trial,  it  is 
not  necessary  that  the  Jiisi  prius  record  should  be  re- 
engrossed,  unless  the  postea  be  indorsed  on  it,  or  that 
any  new  entries  should  be  made  or  paid  for;  but 
the  record  must  be  passed  again,  with  an  alteration 
oftheji/rata;  and  notice  of  trial  being  given,  another 
'venire  and  distringas  must  be  sued  out  and  returned, 
and  the  cause  set  down  anew  ^. 


The  only  ground  of  arresting  judgment^  at  this 
day,  is  some  matter  intrinsic,  appearing  upon  the 

face 

p  Doug.  437.  3  T.  R.  507.  go   the  same  way,  the  party 

6    T.    R.    71.    131.     1    East,  succeeding    has  the  costs  of 

111.    1  H.  Blac.  639.  but  see  both   trials;   but   if    the   ver- 

1  Str.    300.    5  Bur.    2694.  6  diets    go  different   ways,  the 

T.  R.   144.    In   the   court  of  party    ultimately    succeeding 

Common   Pleas,  the    rule    is  has   not  the  costs  of  the  first 

different;   for  there,  if  a  new  trial.      1    East,    1 12.    and  see 

trial  be  granted,  and  the  rule  1  H.  Blac.  641. 

say   nothing    about   costs,   if  q  Imp.  K.  B.   361.  and   see 

the  verdict  on  the  second  trial  R.  Ev  5 3  G.  III. 


Il 


OF  ARREST  OF  JUDGMENT,  &C.  825 

face  of  the  record,  which  would  render  it  erroneous 
and  reversible ;  for  though  it  seems  to  have  been 
otherwise  formerly  %  yet  it  is  now  settled,  that  judg- 
ment cannot  be  airested  for  extrinsic  or  foreign  mat- 
ter,  not  appearing  on  the  face  of  the  record,  but  the 
court  are  to  judge  upon  the  record  itself,  that  their 
successors  may  know  the  grounds  of  their  judgment\ 
The  old  course  of  taking  advantage  in  arrest  of  judg- 
ment was  dius:  The  party,  after  a  general  verdict, 
having  a  day  in  court,  (for  so  he  has,  as  to  matters  of 
law,  though  not  of  fact,)  did  assign  his  exceptions  in 
arrest  of  judgment,  by  way  of  plea,  and  it  was  called 
pleading  in  arrest  of  judgment:  This  differed  from 
moving  in  arrest  of  judgment,  which  was  done  by 
one  as  amicus  curia,  where  the  party  w^asout  of  court  ^ 
After  judgment  on  demurrer,  there  can  be  no  mo- 
tion in  arrest  of  judgment,  for  any  exception  that 
might  have  been  taken  on  arguing  the  demurrer; 
the  reason  is,  that  the  matter  of  law  having  been  al- 
ready settled,  by  the  solemn  determination  of  the 
court,  they  will  not  afterwards  suffer  any  one  to  come 
as  amicus  curia,  and  tell  them  that  the  judgment 
which  they  gave  on  mature  deliberation  is  ^vrong: 
but  it  is  otherwise  after  judgment  by  default,  for  that 
is  not  given  in  so  solemn  a  manner  ". 

The 

«■  1  Salk.  77.  Bur.  2287. 

s  1    Ld.    Raym.   232.   1  t  1  SJk.  77,  8.  215. 

Salk.  77.  b.  C.  /rf.  315.  4  6  Mod    143. 

o  1  Str.  435. 
Vol.  II.  Y 


826  OF  ARREST   OF  JUDGMENT,  hC. 

The  parties  cannot  move  in  arrest  of  judgment, 
for  any  thing  that  is  aided  after  verdict,  at  common 
law ;  or  amendable  at  common  law,  or  by  the  statutes 
of  amendments ;  or  cured,  as  matter  of  form,  by  the 
statutes  of  Jeofails. 

At  common  law,  where  any  thing  is  omitted  in  the 
declai'ation,  thought  it  be  matter  of  substance,  if  it  be 
such  as  that  without  proving  it  at  the  trial,  the  plaintiff 
could  not  have  had  a  verdict,  and  there  be  a  verdict 
for  the  plaintiff,  such  omission  shall  not  arrest  the 
judgment '.  This  rule  however  is  to  be  understood 
with  some  limitation;  for  on  looking  into  the  cases, 
it  appears  to  be,  that  where  the  plaintiff  has  stated  his 
title  or  ground  of  action  defectively  or  inaccurately, 
(because,  to  entitle  him  to  recover,  all  circumstances 
necessary,  in  form  or  substance,  to  complete  the  title 
so  imperfectly  stated,  must  be  proved  at  the  trial,) 
it  is  a  fair  presumption,  after  a  verdict,  that  they 
were  proved;  but  that  where  the  plaintiff  totally 
omits  to  state  his  title  or  cause  of  action,  it  need 
not  be  proved  at  the  trial,  and  therefore  there  is 
no  room  for  presumption  '".  And  hence  it  is  a 
general  rule,  that  a  verdict  \mll  aid  a  title  defec- 

tvoely 

V  2  Show.  233.    T.  Raym.  2  Wils.  5.  4  Bur.  2020.Cowp. 

487.  S.  C.  and  see  Cro.  Jac.  825.  1  T.  R.  141.  3  T.  R.  147. 

44.  Hob.78.  1  Sid.218.Carth.  7 T.  R.  518.  2  Bos,  8cPul.259.. 

304.389.    1  Salk.  130.   2  Ld.  267. 
Raym.  1214.  1  Wils.  1.  255.        ^^  Doug.  679. 


OF  ARREST  OF  JUDGMENT,  ScC,  827 

ihefy  set  out,  but  not  a  defect'me  title  " ;  or  in  other 
words,  nothing  is  to  be  presumed  after  verdict,  but 
what  is  expressly  stated  in  the  declaration,  or  neces- 
sarily implied  from  thefacts  which  are  stated  .  Thus, 
where  the  grant  of  a  reversion  was  stated,  ^vhich 
could  not  take  effect  without  attornment,  that,  being 
a  necessary  ceremony,  might  be  presumed  to  have 
been  proved  ' :  But  where,  in  an  action  against  the 
indorser  of  a  bill  of  exchange,  the  plaintiff  did  not  al- 
lege a  demand  on  and  refusal  by  the  acceptor,  when 
the  bill  became  due,  or  that  the  defendant  had  notice 
of  the  acceptor's  refusal,  this  omission  was  held  to 
be  error,  and  not  cured  by  the  verdict  '^ :  for  in  this 
case,  it  was  not  requisite  for  the  plaintiff  to  prove, 
either  the  demand  on  the  acceptor,  or  the  notice  to 
the  defendant,  because  they  were  neither  laid  in  the 
declaration,  nor  were  they  circumstances  necessary 
to  any  of  the  facts  charged. 

Another  rule  at  common  law  is,  that  surplusage 
will  not  vitiate  after  verdict ;  utile  per  inutile  non 
'vitiatur^':  and  therefore  in  trover,  if  the  plaintiff 
declare  that  on  the  third  of  March  he  was  possessed 
of  goods,  which  came  to  the   defendant's  hands, 

and 

X  1  Salk.  365.  2  Ld.  Raym.  y  Per  Buller,  Just.  1  T.  R. 

1325.  S.  C.2  Str.  1011.  1023.      1 45. and  see  7  T.  R.  521. 
Cas.  temfi.  Ilardw.    1 16.  S.  C.         '  Doug.  683. 
1  Bur.  301.  2  Bur.  J  159.   4  T.         ^  Id.  679. 
R.  472.  b  Co.  Lit.  303.   b.   Plowd 

2^32.   1  Saund.  1C9.  287. 


828  OF  ARREST  OF  JUDGMENT,  &C. 

aiid  that  afterwards,  to  wit,  on  the  first  of  Marchy  he 
converted  them  to  his  own  use,  this  is  cured  after 
verdict;  for  "  that  he  afterwards  converted  them" 
is  sufficient,  and  the  scilicet  is  void  '^. 

As  the  plaintiff's  action  must  have  all  the 
essentials  necessary  to  maintain  it,  so  the  de- 
fendant's bar  must  be  substantially  good;  and  if 
the  gist  of  the  bar  be  bad,  it  cannot  be  cured  by  a 
verdict  found  for  the  defendant :  but  if  it  be  found 
for  the  plaintiff,  he  shall  have  judgment,  either 
for  the  badness  or  falsity  of  the  bar*^.  Thus, 
before  the  satute  for  the  amendment  of  the  law  %  if 
the  defendant  had  pleaded  payment  without  an  ac- 
quittance, and  it  had  been  Ibund  for  him,  yet  he 
could  not  have  had  judgment;  because  the  gist  of 
the  plea  was  bad,  since  the  obligation  remained  in 
force,  until  dissolved  eoclem  ligamine  quo  ligatur ;  but 
if  it  had  been  found  for  the  plaintiff,  he  should  have 
had  judgment  ^, 

Where  a  plea  confesses  the  action,  and  does  not 
sufficiently  avoid  it,  judgment  shall  be  given  on  the 
confession,  without  regard  to  a  verdict  for  the  defen- 
dant, which  is  called  a  judgment  non  obstante  ^ere^ 
dicto  ^;  and  in  such  case,  a  writ  of  inquiry  shall  issue. 

A  ver- 

cCro.  Jac.428.  g  Cro.  Eliz.  241.  Carth.370. 

d  Gilb.  C.  P.  140.  1  Salk.  173.  S.  C.    6  Mod.  1. 

e  4  Ann.  c.  16.  2  Ld.  Raym.  924.  S.  C.  1  Str. 

f  5Co.  43.   Cro.   Eliz.  455.  394.  2  Str.  873.  Willes,  364. 

Moor,  692.  S.  C.  Cro.  Eliz.  1  Bur.  301. 
778. 


OF  ARREST  or  JUDGMENT,  &C.  829 

A  verdict  cannot  help  an  immaterial  issue;  but 
an  informal  one  is  aided  by  the  32  Hen.  VIII.  c.  30\ 
An  immaterial  issue  is,  where  that  M-hich  is  ma- 
terially alleged  by  the  pleadings  is  not  traversed, 
but  an  issue  taken  on  such  a  point  as  will  not  de- 
termine the  merits  of  the  cause:  An  infoimal  issue 
is,  where  such  allegation  is  not  traversed  in  a  proper 
manner '. 

Where  the  issue  is  immaterial,  the  court  will 
award  a  repleader;  respecting  which,  the  following 
rules  were  laid  down  by  the  court,  in  the  case  of 
Staple  and  Haydon  ^ :  First,  that  at  common  law,  a 
repleader  was  allowed  before  trial,  because  a  verdict 
did  not  cure  an  immaterial  issue ;  but  now  a  replea- 
der ought  never  to  be  allowed  till  trial,  because  the 
fault  of  the  issue  may  be  lielped  after  verdict,  by 
the  statute  of  Jeofails.  Secondly,  that  if  a  repleader 
be  denied  where  it  should  be  granted,  or  granted 
where  it  should  be  denied,  it  is  error.  Thirdly,  that 
the  judgment  of  repleader  is  general,  namely,  quod 
partes  replacitent;  and  the  parties  must  begin  again 
at  the  first  fault,  which  occasioned  the  immaterial 
issue '':  Thus,  if  the  declaration  be  ill,  and  the  bar 
and  replication  are  also  ill,  the  parties  must  begin 
de  novo;  but  if  the  bar  be  good,  and  the  replication 

ill, 

«>  Gilb.  C.  P.  147.  1.2Ld.  Raym.   922.3   Salk. 

iCro.  Eliz.227.  Carth.371.  121.  S.  C. 

1  Lev.  32.  2  Mod    137.  k  i  Ld.  Raym.  169. 
J  2  Salk.  579.  and  see  6  Mod. 


830  OF  ARREST   OF  JUDGMENT,  &.C. 

ill,  at  the  replication  K  Fourthly,  no  costs  are  allowed 
on  either  side  ".  Fifthly,  that  a  repleader  cannot  be 
awarded,  after  a  default  at  nisi  prius.  To  which  may 
be  added,  that  a  repleader  can  never  be  awarded  af- 
ter a  demurrer,  or  writ  of  error,  but  only  after  issue 
joined  '■;  nor  where  the  court  can  give  judgment  on 
the  whole  record  " :  And  it  is  not  grantable  in  favour 
of  the  person  who  made  the  first  fault  in  pleading  •'. 
The  distinction  between  a  repleader,  and  a  judg- 
ment 7ion  obstante  lieredicto^  seems  to  be  this :  that 
where  the  plea  is  good  in  form,  though  not  in  tact,  or 
in  other  words,  if  it  contain  a  defective  title,  or  ground 
of  defence,  by  which  it  is  apparent  to  the  court,  up- 
on the  defendant's  own  shewing,  that  in  any  way  of 
putting  It,  he  can  have  no  merits,  and  the  issue  join- 
ed thereon  be  found  for  him,  there,  as  the  awarding 
of  a  repleader  could  not  mend  the  case,  the  court,  for 
the  sake  of  the  plaintiff,  will  at  once  give  judgment 
non  obstante  n^eredicto  '^;  but  where  the  defect  is  not 
so  much  in  the  title,  as  in  the  manner  of  stating  it, 
and  the  issue  joined  thereon  is  immaterial,  so  that 

the 

1  3  Keb.  664,  p  I  Ld.  Raym.  170.  Doug. 

'"  2  Vent.  196.6  T.R.  131.  396.747. 

Barnes,  125.  2   Bos.   Sc  Pul.  i  1  Salk.  173.  6  Mod.    1.  2 

376.  Ld.  Raym.    924.  S.  C.   1    Str. 

n  3  Salk.  306.  394.    2    Str.  873.  Willes,  364.          _, 

»  Wille5,532,  3.  1  Bur.  301.  Cowp.  510.  Doug.        ^ 

749. 


I 


OF   ARREST  OF  JUDGMENT,  &C.  831 

the  court  know  not  for  whom  to  give  judgment, 
whether  for  the  plaintiff  or  defendant,  there,  for  their 
own  sake,  they  will  award  a  repleader  *" :  A  judg- 
ment therefore  non  obstante  ve?x'clicto  is  always  upon 
tlic  merits ;  a  repleader,  upon  the  form  and  manner 
of  pleading. 

A  •venire facias  de  noDo  ^  is  grantable,  in  the  fol- 
lowing cases:  First,  where  the  jury  are  improperly 
chosen,  or  there  is  any  irregularity  in  returning  t  em''. 
Secondly,  where  thty  have  improperly  conducted 
themselves  ".  Thirdly,  where  they  give  general  da- 
mages, upon  a  declaration  consisting  of  several 
counts,  and  it  afterwards  appears  that  one  or  more  of 
them  is  defective  ^.  Fourthly,  where  the  verdict, 
whether  general  or  special  '^,  is  imperfect,  by  reason 
of  some  uncertainty  or  ambiguity  '',  or  by  finding- 
less  than  the  whole  matter  put  in  issue,  or  by  not  as- 
sessing damages  •'.  Fifthly,  by  the  statute  1  h.  ^  W. 

III.  c.  32. 

•  3  Salk.  305.  1  Ld.  Riiym.  though  some  of  them  be  not 
391.  S.  C.  2  Str.  847.  994.  1  actionable  :  aems,  where  are 
Bur.  301.  two  counts,  and    none  of  the 

*  For  the  difference  between  words  in  one  are  actionable, 
a  ffmrerfenofo  and  a  new  trial,  and  there  is  a  general  verdict 
see  1  Wils.  55.  for  the  plaintiff.  WilJes,  443. 

t  2  T.  R.  126.  in  nods.  ^  2  Ld.  Raym.  1521.  1584. 

"  Id.  ibid.  2  Str.  887.  S.  C.    1  124.  S.  P. 

V  R.  M.  1654.  §  21.  Doug.  ^^  Same  cases  ;  5  Bur.  2669. 

377,  8.  and  see  1  T.  R.  542.  6  7  T.  R.  52.  1  East,  111. 

T.  R.  691.   But  the  court  will  y  2  Str.  1052.  2  Wils.  367. 

not  arrest  the  judgment  in  an  377.  2  T.  R.  136.  in  nods. 
action  for  words  in  one  count. 


832  OF   ARREST  OF  JUDGMENT,  ScC. 

c.  32.  §  1.  if  the  piaintifF,  after  issuing  jury-process, 
do  not  proceed  to  trial  at  the  first  assizes :  but  if  the 
jury  be  discharged  at  the  assizes,  in  order  to  have  a 
view,  there  is  no  need  of  a  'venire  de  now  ^.  A  'uenire 
de  no'vo  may  be  granted  by  a  court  of  error  ^ ;  or  af- 
ter a  demurrer  to  evidence  '\  or  bill  of  exceptions  ^ 
And  where  a  venire  de  novo  is  awarded,  the  party 
succeeding  is  only  entitled  to  t^ie  costs  of  the  second 
trial  ^, 

The  doctrine  of  amendments  having  been  already 
considered,  1  shall  next  proceed  to  take  a  short  re- 
view of  the  statutes  of  Jeofails^  and  the  decisions 
tliereon,  as  applicable  to  different  proceedings  in  the 
course  of  the  suit.  And  first,  of  the  original  writ. 

The  want  of  an  original  writ,  we  have  seen  ^, 
is  aided  after  verdict,  by  the  18  Eliz.  c.  14.  which 
stiitute  has  been  extended,  by  an  equitable  con- 
struction, to  the  want  of  a  hill  upon  the  file  ^.  This 
statute   also   cures   the   want    of    form,    touching 

false 

■t-  Com.  Rep.  248.  367.  2  H.  Blac.  211. 

a2Str.  1051.   1124.  Cowp.  c  2  T.   R.  125.  3  T.  R.  36. 

89.  91.   Doug.    730.  1  T.  R.  d  6  T.  R.  131.  1  East,  111. 

783.  5  T.  R.  367.  2  H.  Blac.  Jnte,755.    810,    11.    823,24. 

2  1 1.  but  see  2  Str.   1055.  1  T.  e  Jnte,  102. 

R.  \52.  f>c77ib.  ccTifra.  f  Hob.  130.  134.  264.  281. 

i-Sty.Rep.  34.335.  5  T.R.  304. 


OP  ARREST  OF  JUDGMENT,  &C.  833 

felse  Latin^  or  variance  from  the  register,  or  other 
defaults  in  form,  in  any  writ  original  or  judicial,  &c. 
By  the  21  Jac.  I.  c.  13.  "  judgment  after  verdict 
"  shall  not  be  stayed  or  reversed,  by  reason  of  any 
"  variance  in  form  only,  between  the  original  writ 
*'  or  bill,  and  the  declaration,  plaint  or  demand." 
And  by  the  16  &  17  Car.  II.  c.  8.  (which  Twisden 
Justice  used  to  call  the  Omnipotent  act^,)  "  judg- 
"  ment  after  verdict  shall  not  be  stayed  or  reversed, 
*'  for  want  of  form,  or  pledges  returned  upon  the 
"  original  writ,  or  because  the  sheriff's  name  is  not 
"  returned  thereon,  or  for  want  of  pledges  upon  any 
"  bill  or  declaration,  &c."  Lastly,  by  the  5  Geo.  I.  c. 
13.  (lord  King's  act '',)  "  judgment  after  verdict  shall 
**  not  be  stayed  or  reversed,  for  any  defect  or  fault, 
"  either  in  form  or  substance,  in  any  bill,  writ  origi- 
"  nal  or  judicial,  or  for  any  variance  in  such  writs, 
"  from  the  declaration  or  other  proceedings." 

Secondly,  The  want  of  a  nvarrant  of  attorney  for 
either  party  is  aided,  after  verdict,  by  the  32  Hen. 
VIII.  c.  30.  and  18  Eliz.  c.  14.  And  by  the  21 
Jac.  I.  c.  13.  "  judgment  shall  not  be  stayed  or 
•'  reversed,  for  that  the  plaintiff  in  ejectment,  or 
"  other  personal  action,  being  under  age,  appeared 
"  by  attorney."  But  if  the  defendant  being  under 
age,  appears  by  attorney,  it  is  still  error  ':  Thougli 
if  an  attorney  undertake  to  appear  for  an  infant  de- 
fendant, 

g  1  Vent.  loe.  and   see   ?"        i'  3  Atk.  601. 
T.  R.  587.  i  Ante^  70.  Barnes,  413. 

Vol  it.  Z 


834  or  ARKEST  OF  JUDGMENT,  &C. 

fendant,  the  court  will  oblige  him  to  do  it  in  a  pro- 
per manner ''. 

Thirdly,  Mistakes  dnd  omissions  in  the  declara- 
tion^ and  other  subsequent  pleadings^  are  oftentimes 
cured  by  the  statutes  of  Jeofails;  which  declare, 
"  that  judgment,  after  verdict,  shall  not  be  stayed 
"  or  reversed,  by  reason  of  any  mispleading,  lack  of 
"  colour,  insufficient  pleading  or  y>o/j7i/,  or  other  de- 
"  fault  or  negligence  of  the  parties,  their  counsellors 
"  or  attornies ';  want  of  form  in  any  count,  declara- 
"  tion,  plaint,  bill,  suit,  or  demand '";  lack  of  aver- 
"  ment  of  any  life,  so  as  the  person  be  proved  to  be 
*'  alive  ";  want  of  d^ny  prof  en,  or  the  omission  of  Dt 
"  et  arm'is  or  contra  pacem,  mistaking  the  christian 
"  name  or  surname  of  either  party,  sums,  day, 
"  month  or  year,  in  any  bill,  declaration  or  pleading, 
' '  being  right  in  any  writ,  plaint,  roll  or  record  pre- 
"  ceding,  or  in  the  same  roll  or  record  wherein  the 
"  same  is  committed,  to  which  the  plaintiff  might 
"  have  demurred,  and  shewn  the  same  for  cause; 
"  want  of  the  averment  of  hoc  paratus  est  Derificare, 
"  or  hoc  paratus  est  "verijicare  per  recordum,  or  for 
"  not  alleging  prout  patet  per  recordum,  or  the  want 
"  of  a  right  venue,  so  as  the  cause  were  tried  by  a 
"  jury  of  the  proper  county,  where  the  action  is  laid; 
'■'•  or  any   other  matters  of  like  nature,  not  being 

"  against 

k  I  Str.  114.445.  ">  18  Eliz.  c  14. 

1  32  Hen.  VIII.  c.  3Q.  "^  21  Jac.  I.e.  13. 


OF   ARREST  OF  JUDGMENT,  &C.  835 

"  against  the  right  of  the  matter  of  the  suit,  nor 
"  whereby  the  issue  or  trial  are  altered  °.''  The  last 
of  these  statutes  seems  to  extend  not  only  to  those 
cases  where  there  is  a  wrong  venue  in  a  right  coun- 
ty, but  also  to  those  where  the  cause  has  been  im- 
properly tried  in  a  wrong  county  ''. 

Fourthly,  The  misjoining  of  the  issue  is  aided  by 
the  32  Hen.  VIII.  c.  30.  which  also  extends  to  any 
miscontinuance  or  discontinuance,  or  misconveying 
of  process:  And  a  discontinuance  is  cured  by  the 
appearance  of  the  party,  in  penal  as  well  as  other  ac- 
tions ''.  But  the  want  of  a  similiter  was  formerly 
holden  not  to  be  aided  or  amendable  ' :  And  where, 
in  the  similiter^  the  defendant's  name  was  put  in- 
stead of  the  plaintiff's,  the  chief-justice  dismissed  the 
jury,  conceiving  that  he  had  no  commission  to  try 
the  issue  '.  But  in  a  subsequent  case,  where  a  similar 
mistake  was  made,  the  court,  after  trial  of  the  issue, 
refused  to  arrest  the  judgment';  and  at  length,  the 
want  of  a  similiter  was  holden  to  be  amendable,  upon 
three  grounds;  first,  that  it  was  merely  an  omission  of 
the  clerk;  secondly,  that  it  was  implied  in  the  ^c. 
added  to  the  last  pleading;  and  diirdly,  that  by  amend- 
ing' 

"  16  Sc  irCar.  II.c.  8.  q  6  T.  R.  255. 

V  7  T.  R.  583.  and  see    1  M  Str.  641.  8  Mod.  ."76. 

Ld.  Raym.   330.  Carth.  448.  S.  C 

S.   C.  Willes,   431.   3    East,  ^  2  Str.  1117. 

580.  f  1  Bxir.  1793. 


836  OF  ARREST  OF  JUDGMENT,   &C. 

ing,  the  court  only  made  that  right,  which  the  de- 
fendant himself  understood  to  be  so,  by  his  going 
down  to  trial ". 

Fifthly,  With  respect  to  the  ^z^ry-process,  it  is 
provided  by  the  statute  21  Jac.  I.  c.  13.  "  that  af- 
*'  ter  verdict,  judgment  shall  not  be  stayed  or  re- 
*'  versed,  by  reason  that  the  venire  facias,  habeas 
*'  corpora,  or  distringas  is  awarded  to  a  wrong  offi- 
*'  cer,  upon  any  insufficient  suggestion;  or  by  reason 
*'  the  1)15716  is  in  some  part  mis-awarded,  or  sued  out 
"  of  more  places,  or  of  fewer  places,  than  it  ought 
*'  to  be,  so  as  some  one  place  be  right  named;  or  by 
*'  reason  that  any  of  the  jury  which  tried  the  said 
"  issue  is  mis- named,  either  in  the  surname  or  addi- 
'*  tion,  in  any  of  the  said  writs,  or  in  any  return  upon 
"  any  of  the  said  writs,  so  as  upon  examination  it  be 
"  proved  to  be  the  same  man  that  was  meant  to  be 
"  returned;  or  by  reason  that  there  is  no  return  upon 
"  any  of  the  said  writs,  so  as  a  panel  of  the  names  of 
"  the-  jurors  be  returned  and  annexed  to  the  said 
"  \vrit;  or  for  that  the  sheriff's  name,  or  other  offi- 
'*  cer's  name,  having  the  return  thereof,  is  not  set  to 
*'  the  return  of  any  such  writ,  so  as  upon  examina- 
"  tion  it  be  proved  that  the  said  writ  was  returned 
"  by  the  sheriff  or  under-sheriff,  or  any  such  other 
•'  officer." 

If 

V  Cowp.  407.  and  see  1  Str.  551. 


Of  arrest  of  judgment,  &c. 


837 


If  a  <vmire  be  of  the  same  action,  and  between  the 
same  parties,  all  other  faults  are  amendable ''.  But 
these  are  incurable ;  and  therefore  in  ejectment^  if  the 
venire  be  of  a  plea  of  trespass,  omiitin^  and  ejectfnent 
of  farm,  it  is  ill,  because  not  in  the  same  action;  but 
if  the  distringas  had  been  right,  tlic  court  would 
have  adjudged  the  venire  to  be  null,  and  the  want  of 
it  is  aided  ".  So  in  scire  facias  against  an  executor, 
to  haveexecutionof  a  judgment  for  dcunages  in  trover, 
it  was  moved  in  arrest  of  judgment,  that  the  venire 
was  in  a  plea  of  debt,  and  a  new  venire  was  award- 
ed ^.  The  statute  21  Jac.  I.  only  extends  to  the  sur- 
names and  additions  of  the  jurors;  and  therefore  if 
there  be  a  mistake  in  the  christian  name,  it  is  in- 
curable ^.  It  is  necessaiy,  by  this  statute,  that  there 
should  be  a  panel  returned ;  ■  therefore  if  the  sheriff 
return  but  23  on  the  venire,  and  24  on  the  distrin- 
gas or  habeas  corpora,  and  the  twenty-fourth  omit- 
ted on  the  venire  appear  and  be  sworn,  the  verdict 
will  be  void  '.  But  if  12  of  the  23  be  sworn,  and  not 

the 


w  Gilb.  C.  P.  174. 

X  /(/.  175.  Bui.  M.  PH. 
320.  but  see  Cro.  Cur.  275. 
278.  where  a  similar  mistake 
in  the  jurata  was  amended, 
the  venire  and  distri7igus  being 
right. 

y  Cro.  Jac.  528.  Bui.  M. 
Pri.  320. 

z  5  Co.  42.  Cro.  Car.  202. 
Gilb.  C.  P.  177.  But  the  court 


of  common  pleas  refused  to 
set  aside  a  verdict,  and  grant 
a  new  trial,  because  one  of 
the  jurors  was  named  Henry 
in  the  venire,  tiie  habeas  cor- 
{lora,  and  the  Jiostca-,  his  real 
christian  name  being  Han-y, 
Willes,  488.  Barnes,  454.  S, 
C. 

a  Cro.  Car.  278.  Gilb.  C. 

P.  17S.  So  a  verdict  has  been 

set 


138  or  ARREST  OF  JUDGMENT,  &C. 

the  24th,  it  is  aided  by  the  18  ERt..  So  where  there 
were  but  24  returned  upon  the  panel  annexed  to  the 
ijemre  facias,  and  there  were  48  on  the  habeas  cor- 
pora^ upon  which  the  defendant  made  no  defence; 
the  court  upon  motion  set  aside  the  verdict  without 
costs,  saying,  that  the  21  Jac.  I.  means  only  the 
formal  words  upon  the  writ,  for  there  must  be  a 
panel  annexed  to  the  return  ''. 

The  statutes  of  jeofails  are  extended  by  the  statute 
for  the  amendment  of  the  law  '^,  to  judgments  en- 
tered upon  confession,  nihil  dicit,  or  non  sum  infor- 
matus,  in  any  court  of  record;  and  it  is  thereby 
enacted,  "  that  no  such  judgment  shall  be  reversed, 
*'  nor  any  judgment  upon  any  writ  of  inquiry  of  da- 
''  mages  executed  thereon  be  stayed  or  reversed,  for 
"  or  by  reason  of  any  imperfection,  omission,  defect, 
*'  matter  or  thing  whatsoever,  which  would  have 
"  been  aided  and  cured  by  any  of  the  said  statutes  of 
"  jeofails,  in  case  a  verdict  of  twelve  men  had  been 
"  given  in  the  said  action  or  suit,  so  as  there  be  an 
"  original  writ  or  bill,  and  warrants  of  attorney  duly 
"  filed  according  to  law."  And  by  a  subsequent  acf*, 

this 

set  aside,  because  one  of  the  ''  Browyi  and  Johnston,  C.  B. 

jurymen  was  not  returned  on  T.  1 1  Geo.  II.  Bui.  A1.  Pri. 

the   nisi  firius  panel,  but  an-  324. 

swered  to  the  name  of  a  per-  <=■  4  Ann.  c.  16.  §  2. 

son   v/ho  was.   Willes,    484.  ^  9  Ann.  c.  20. 

Barnes,  453.  S.  C.  Ante,  817. 


OF  ARREST  OF  JUDGMENT,  &C.  839 

this  and  all  the  statutes  of  jeofails  are  extended  to 
writs  of  mandamus,  and  informations  in  nature  of  a 
quo  'iijarranto.  As  there  cannot  however  be  the  same 
intendment,  in  support  of  a  judgment  by  default,  as 
after  a  verdict,  it  has  been  holden,  that  the  statutes 
of  jeofails  do  not  protect  judgments  by  default, 
against  objections  that  are  cured  by  a  verdict  at 
common  law,  but  such  only  as  are  remedied  after  a 
verdict  by  the  statutes  ^. 

The  statute  32  Hen.  VIII.  c.  30.  is  confined  to 
actions  at  common  law;  and  in  all  the  subsequent 
statutes  of  jeofails,  there  is  a  proviso,  that  they  shall 
not  extend  to  criminal  proceedings,  nor  to  any  writ, 
bill,  action,  or  information  upon  any  popular  ox  penal 
statute,  other  than  such  as  concern  the  customs  and 
subsidies  of  tonnage  and  poundage  ^.  It  has  however 
been  determined,  that  the  statute  32  Hen.  VIII.  c. 
30.  extends  to  penal  actions  '^.  And  by  the  statute  4 
Geo.  II.  c.  26.  which  reduces  the  forms  of  legal  pro- 
ceedings into  the  English  language,  "  all  and  every 
statute  and  statutes  for  the  reformation  and  amending 
of  the  delays  arising  from  any  jeofails,  shall  and  may 
extend  to  all  and  every  form  and  forms,  and  to  all 
proceedings  in  courts  of  justice,  (except  in  criminal 

cases,) 

«  2  Str.  933.  8  3  Lev.  375.  1  Str.    136.  2 

f  16  &  17  Car.  II.  c.  8.  and     Sir.  1227.  Doug.  115. 
see  1  Wils.  127.  Cowp.  392. 


840  OF  ARREST  OF  JUDGMENT,  &C. 

cases,)  when  the  forms  and  proceedings  are  in  Eng- 
lish; and  all  errors  and  mistakes  are  amendable  and 
remedied  thereby,  in  like  manner  as  if  the  proceed- 
ings had  been  in  Latin.''''  And  though  by  the  16 
and  17  Car.  II.  c.  8.  the  several  omissions,  variances 
and  defects  therein  mentioned,  are  required  to  be 
amended  by  the  judges  of  the  court  where  the  judg- 
ment is  given,  or  the  record  removed  by  writ  of  er- 
ror, yet  an  actual  amendment  is  never  made  on  this 
statute;  but  the  benefit  of  the  act  is  attained,  by  the 
court's  overlooking  the  exception ''. 

The  motion  in  arrest  of  judgment,  or  for  judg- 
ment non  obstante  •veredicto,  ^c.  may  be  made  at  any 
time  before  judgment  is  given  ';  though  a  new  trial 
has  been  previously  moved  for^.  But  it  is  against 
the  ancient  course  of  the  court,  to  make  a  rule  to 
stay  judgment,  unless  the  postea  be  brought  in;  and 
therefore  it  is  said,  that  if  one  move  in  arrest  of  judg- 
ment, he  ought  to  give  notice  to  the  clerk  in  court 
on  the  other  side;  but  the  better  way  is,  to  give  a 
rule  upon  the  postea,  for  bringing  it  into  court,  and 
that  is  notice  of  itself ''. 

h  2   Str.    1011.  Cas.  te77i/i.        i  Doug.  745,  6. 
Hardw.  314,  15.  k  Salk.  78.  6  Mod.  24.  S. 

i  2  Str.  845.  5   T.  R.  445.     C.  and  see  5  T.  R.  454,  5. 

CHAP- 


[     84.1     ] 
CHAPTER  XXXIX. 

Q/'JUDGMENTS. 

/^N  the  expiration  of  the  rule  for  judgment,  if 
^""^  there  be  no  previous  motion  for  a  new  trial,  or 
in  arrest  of  judgment,  &:c.  the  prevailing  party  hav- 
ing got  the  postea  stamped  with  a  double  half-crown 
stamp,  and  marked  by  the  clerk  of  the  posteas  %  may 
proceed  to  sign  final  judgment. 

Judgment  is  the  conclusion  of  law,  upon  facts 
found  or  admitted  by  the  parties,  or  upon  their; 
default  in  the  course  of  the  suit.  And  it  is  either 
for  the  plaintiff,  or  for  the  defendant :  for  the  for- 
mer, by  7iihil  die  it '',  non  sum  informatus  ",  or  con- 
fession '*;  for  the  latter,  on  a  non-pros  ^,  discon- 
tinuance %  7wlle  prosequi  '^j  cassetur  billa  "vel  breije  '', 
retraxit^  nonsuit ',  or  as  in  case  of  a  nonsuit ';  and 
for  either  party,  upon  demurrer'',  nul  tiel  record\ 

or 

a  There  is  an  old  rule  of  «  Append.  Chap.  XXXIX. 
court,  requiring  the  fiostca  to     §  15,  16. 

be  marked  in  two  days  after  <^  Id.  §  17,  Scc- 

it    comes   to    the     attorney's  « /c/.  §  5 1,  Sec. 

hands:  R.  T.  2  Jac.  I.  reg.  2.  f  Id.  §  65,  6. 

but  now,   it  is  deemed  suffi-  b  Id.  §  67,  8. 

cient  to  mark   the  fiostea,  at  ^  Id.  §  69. 

any  time  before  the  costs  are  »  Id.  §  63,  4. 

taxed.  1  Cromp.  277.  k  Jd.  §  32,  Sec.  70. 

»>  Append.  Chap.  XXXIX.  i  Id.  §  36,  7.7\. 
5  1,  S^c. 

Vol.  IT.  2  A 


842  OF  JUDGMENTS. 

or  verdict  ".  The  present  chapter  will  be  principally 
confined  to  the  latter  judgment,  on  an  issue  in  fact 
found  by  verdict;  the  other  species  of  judgments 
lia^'ing  been  already  treated  of. 

In  assumpsit^  covenant ^  case^  replevin^  and  trespass^ 
the  judgment  for  the  plaintiff  is,  that  he  recover  his 
damages  "  and  costs  against  the  defendant;  to  be 
levied,  in  an  action  against  an  executor  or  admi- 
nistrator, of  the  goods  of  the  testator  or  intestate,  in 
the  hands  of  the  defendant,  if  he  hath  so  much  there- 
of in  his  hands  to  be  administered;  and  if  not,  then 
the  costs  to  be  levied  de  bonis propriis  °.  In  debty  the 
judgment  for  the  plaintiff'  is,  that  he  recover  his  debt, 
together  with  his  damages  and  costs ;  to  be  levied, 
in  an  action  against  an  executor  or  administrator,  of 
the  goods  of  the  testator  or  intestate,  if,  &c.  and  if 
not,  then  the  damages  and  costs  to  be  levied  de  bonis 
propriis ''.  In  annuity^  the  judgment  is,  for  the  plain- 
tiifto  recover  the  annuity,  and  arrearages  of  the  same, 
as  well  before  the  bringing  of  the  action  as  after^ 
wards,  tip  to  the  time  when  judgment  is  given  ''. 

In 

""  Append.  Chap.  XXXIX.  assessed  by  the  jury  who  try 

§  38,  etc.  72,  Sec.  the  issue,  on  a  verdict. 

f  The   damages  in  assmn/i-         "  4  T.  R.  648.  7  T.  R.  359. 

sit,  Sec.  are   either  confessed  Append.  Chap.  XXXIX.  §  8. 

by  the  defendant,  ascertained  18.  42. 

by  the  court,  on  a  bill  of  ex-        p  Append.  Chap.  XXXIX. 

change,  Sec.  found  by  the  in-  §  25.  45. 
quisition  of   a  sheriff's  jury,        i  Co.    Ent.    50.  Cro.  Car. 

on  a  judgment  by  default,  or  436. 


OF  JUDGMENTS.  843 

Li  detinue^  it  is  for  the  plaintiff  to  recover  the 
goods,  or  their  value,  with  damages  and  costs  ^  In 
replevin,  the  judgment  for  the  defendant,  at  common 
law,  is  to  have  a  return  of  the  goods  ' ;  or  upon  the 
statute  17  Car.  If.  c.  7.  to  recover  the  arrearages  oi 
rent,  or  value  of  the  goods,  and  costs ' ;  and  in  other 
actions,  the  judgment  for  the  defendant  upon  a  non- 
pros, nonsuit  or  verdict,  is  to  recover  his  costs  only ". 

The  taxing  costs  upon  a  postea  is  considered  as 
signing  final  judgment:  after  which,  execution  may 
be  immediately  taken  out,  against  tlie  defendant's 
person  or  goods;  but  in  order  to  charge  him  in  exe- 
cution, or  bind  his  lands,  or  to  proceed  against  him 
by  action  of  debt  or  scire  facias  on  the  judgment,  or 
against  his  bail  on  their  recognisance,  or  if  a  writ  of 
error  be  brought,  it  is  necessary  that  the  judgment 
should  be  entered  of  record,  and  docketed,  and  the 
judgment-roll  carried  to,  and  filed  in  the  treasury  of 
the  court. 

The  judgment  after  verdict,  &:c.  is  entered  on  the 
issue-roir,  which  from  thenceforth  is  called  the  judg- 
ment-roll; and  if  the  roll  has  already  been  carried  in, 
which  seldom  happens  but  where  the  plaintiff  has  been 
ruled  to  enter  the  issue,  xht  postea  is  taken,  with  the 
master's  allocatur,  to  the  treasury  at  Westminster,  and 
the  clerk  of  the  treasury  continues  the  proceedings, 

and 

■•  ApiTcnd.  Chap.  XXXIX.  ^  Id.%  59,  60.  74. 

§47,  '  .  /^.  §5  1,  Sec. 

s  Jd.  57,  Sec.  .'Intr,  681. 


844 


OF  JUDGMENTS. 


and  enters  the  judgment.  But  if,  as  is  more  frequent- 
ly the  case,  an  incipitur  only  is  made  on  the  issue- 
roll,  at  the  time  of  passing  the  record  of  nisi  prius, 
the  whole  proceedings  are  to  be  entered,  beginning 
with  the  wan-ants  of  attorney  "'.  The  proceedings  are 
continued  on  the  issue-roll,  after  the  award  of  the 
venire  Jacias,  by  the  following  entry :  Afterwards  the 
process  thereof  is  continued  between  the  parties  afore- 
said^ of  the  plea  aforesaid^  hy  the  jury  being  respited 
between  them^  before  the  lord  the  king  at  Westmin- 
ster, or  (by  original)  "wheresoe^uer,  &c.  until  \jhe  re- 
turn of  the  distringas"]  ufilesSy  &c.  [^as  in  the  juratd\ 
according  to  the  form  of  the  statute  in  such  case  made 
and promded^  for  default  of  the  jurors^  because  none  of 
them  did  appear:  At  which  day^  before  the  said  lord 
the  king  at  Westminster,  comes  the  said  (plaintiff) 
hy  his  said  attorney^  and  the  said  chief  justice  \_or 
justices  of  assize^  before  whom  the  said  issue  was 
tried,  sent  hither  his  \_or  their']  record,  had  in  these 
■words,  to  wit,  [then  follows  a  copy  oHh^postea,  from 
the  nisi  prius  record,  and  afterwards  the  final  judg- 
ment ''.] 

These  entries  were  formerly  made  by  the  clerks 
of  the  chief-clerk  ^,  who  were  called  enteruig  clerks; 

but 


^■^  Jnte,  6?>\,2,  which  the    clerks  mtist     an- 

^  Append.  Chap.  XXXIX.  ciently  have    accounted  with 

§  38.  the  secondary    see  R.  E.   15 

y  R.    M.    1654.  §    14.   R.  Car.    II.    Reg.  ^.   R.  H.    15 

T.  1  Jac.  II.  R.  M.  5  Ann.  &  16  Car.  II.  Reg.  1.   R.  T. 

And    for    the    times    within  20  Car-  II. 


OF  JUDGMENTS. 


845 


but  they  are  now  made  by  the  attoniies^  and  ought 
to  be  written  in  a  full  fair  hand,  with  a  large  margin, 
of  an  inch  at  least,  and  a  convenient  distance  at  the 
top,  for  binding  up  the  same,  and  at  the  bottom,  that 
the  writing  be  not  rubbed  out  \  In  this  manner,  the 
proceedings  may  be  entered  on  both  sides  of  the  roll, 
beginning  on  the  back,  over  against  the  first  line  of 
the  first  warrant  of  attorney,  and  taking  care  to  leave 
a  sufficient  space  at  the  end,  for  the  co7nmittitur ,  and 
entry  oi"  satisfaction,  8^,c. 

The  rule  with  regard  to  bringing  in  rolls,  is  that 
every  attorney  ought  to  bring  them  into  the  office, 
fairly  engrossed,  by  the  following  times,  (that  is  to 
sa} )  the  rolls  of  Trinity,  Michaelmas,  and  Hilary 
terms,  before  the  essoign-day  of  every  subsequent 
term,  and  the  rolls  of  Easter  term,  before  the  first 
day  of  Trinity  term  '\  And  formerly,  no  roll  could 
have  been  brought  in  and  filed,  with  a  post  tcrmi- 
num,  without  leave  of  the  court ''.  But  in  order  to 
accommodate  the  attornies,  the  custos  brevium  now 
usually  attends,  the  day  but  one  before  every  term, 
to  receive  and  file  their  rolls  ^  And  a  roll  may 
be  had  of  a  preceding  term,  as  a  matter  of  course, 

by 

'■  R.  H.  1657.  Jnte,  681.  87.  2  Ld.  Raym.  850.  6^ Mod. 

>R.  E.  5  W.   Ec  M.   M.  191. 

9  W.  III.  T.  10  W.  III.  M.  c  R.  E.  9  W.  III.  (a).  1  Sel. 

5  Ann.  535 

bR.  E.  9  W.  III.    1    Salk 


846  OF  JUDGMENTS. 

by  applying  to  the  clerk  of  the  treasury,  and  paying 
'cl  post  terminum;  which  roll  may  be  docketed  and  fil- 
ed, on  paying  some  small  additional  fees  to  the  offi- 
cers of  the  court  ^. 

At  common  law,  the  death  of  a  sole  plaintiff  or  de- 
fendant, before  final  judgment,  would  have  abated  the 
suit :  but  if  either  party  after  verdict  had  died  in  va- 
cation, judgment  might  have  been  catered  tliat  va- 
cation,  as  of  the  preceding  term,  and  it  would  have 
been  a  good  judgment  at  common  law,  as  of  the  pre- 
ceding term  ;  though  it  be  not  so,  upon  the  statute 
of  frauds,  in  respect  of  purchasers,  but  from  the 
signing  ^.  And  if  either  party  die,  after  a  special  ver- 
dict, and  pending  the  time  taken  for  argument  or  ad- 
vising thereon,  or  on  a  motion  in  arrest  of  judgment, 
or  for  a  ncAv  trial,  judgment  may  be  entered,  at 
common  law,  after  his  death,  as  of  the  term  in  which 
the postea  was  returnable,  or  judgment  would  other- 
wise have  been  given,  ?iimc  pro  tunc  ^;  that  the  delay 
arising  from  the  act  of  the  court,  may  not  turn  to  the 
prejudice  of  the  party. 

So 

<!  1  East,  409.  T.  R.  368.  7  T.  R.  20. 

e  1   Salk.  87.  3  Salk.  116.  f  1  Leon.  187.  Latch,  92.  1 

I    Ld.    Raym.    695.     2    Ld.  Sid.  462.    1  Vent.  5%.  90.  S. 

Rayn\.  766.  849.869.  7  Mod.  C.   10  Mod.  30.   325.    1    Str. 

2.  93.   S.  C.  3  Salk.    159.   2  427.  1  Bur.  147.   226.4  Bur. 

Salk.  401.  7  Mod.  39.  S.  C.6  2277. 1  East,  409.  Barncs,255. 

Mod.    191.  3  P.  Wi-ns.   399.  261. 
Willes,  427.   Barnes,  266.  6 


or  JUDGMENTS.  847 

So  in  actions  against  executors  or  administrators, 
if  the  application  be  made  in  a  reasonable  time,  the 
court  will  give  the  plaintiff  leave  to  enter  up  judg- 
ment, as  of  a  preceding  term,  when  it  was  signed, 
nunc  pro  tunc  ^.  I'his  however  is  discretionary  in  the 
court;  and  being  a  matter  of  indulgence,  they  have 
sometimes  refused  to  allow  it,  after  a  considerable 
lapse  of  time,  where  the  delay  has  been  owing  to  the 
plaintiff  or  his  attorney ''.  And  in  granting  this  in- 
dulgence, the  court  will  take  care  that  it  shall  not 
operate  to  the  prejudice  of  the  defendant,  by  making 
the  plaintiff  undertake  not  to  disturb  intermediate 
payments  made  by  the  defendant  ',  or  impeach  judg- 
ments obtained  in  the  interval "".  In  an  action  of  debt 
on  judgment,  the  court  will  not  give  lea\  e  to  enter  up 
the  judgment  nunc  pro  tuncy  where  the  proceedings 
were  stayed  pending  a  writ  of  error,  and  the  plaintiff" 
died  before  the  affirmance  of  the  judgment '.  And  in 
general  it  should  seem,  that  if  there  be  a  rule  for 
judgment,  and  it  be  not  entered  for  many  years,  the 
court  will  not  suffer  it  to  be  entered,  without  exa- 
mining how  it  came  not  to  be  entered  before  "'. 

Where    either    party    dies   bctivecn  Dcrdict   a?id 
judgment  J  it  is  enacted  by  the  statute  17  Car.  II. 

c.  8. 

K  6  T.  R.   6.  Baker  v.  Ba-  i  6  T.  R.  11. 

Afr,  execuU'ix,  H.  35  G.  lil.  ^  Lloyd  \.  i/o7w//,  admiuis- 

Lloyd  V.  Hoivell^   administra-  tratrix,  11.  37  Geo.  III. 

trix,  H.  Z7  G.  III.  1 1  T.  R.  637. 

h  1   Str.  639.  Barnes,  262.  •"  6  Mod.  59. 
see  also  6  Mod.  191. 


848  OF  JUDGMENTS. 

c.  8.  "  that  his  death  shall  not  be  alleged  for  error, 
*'  so  as  the  judgment  be  entered  within  two  terms  af- 
"  ter  the  verdict."  In  the  construction  of  this  statute 
it  has  been  holden,  that  the  death  of  either  party  be- 
fore the  assizes  is  not  remedied ;  but  if  the  party  die 
after  the  assizes  begin,  though  before  the  trial,  that 
is  within  the  remedy  of  the  statute ;  for  the  assizes  are 
considered  but  as  one  day  in  law,  and  this  is  a  reme- 
dial act,  which  shall  be  construed  favourably ".  The 
judgment  upon  this  statute  is  entered  by  or  against 
the  party,  as  though  he  were  alive  °;  and  it  should  be 
entered,  or  at  least  signed '',  within  t\vo  temis  after 
the  verdict. 

By  a  subsequent  statute  ""j  it  is  enacted  "  that  in 
"  all  actions  to  be  commenced  in  any  court  of  re- 
"  cord,  if  the  plaintiff  or  defendant  happen  to 
"die  after  interlocutory  and  before  final  judgment^ 
"  the  action  shall  not  abate  by  reason  thereof,  if 
"  such  action  might  have  been  originally  prose- 
"  cuted  or  maintained,  by  or  against  the  executors 
"  or  administrators  of  the  party  dying;  but  the 
"  plaintiff,  or  if  he  be  dead  after  such  interloCu- 
"  tory  judgment,  his  executors  or  administrators, 
"  shall  and  may  have  a  scire  facias  against  the  de- 

"  fendant, 

"  1  Salk.  8.  and  see  2  Ld.  p  1  Sid.  385.  Barnes,  261. 

Raym.  1415.  in  notis.  7  T.  R.  q  Stat.  8  &  9  W.  III.  c.  H . 

31.  ^6. 

°  1  Salk.  42. 


OF  JUDGMENTS.  849 

**  fendant,  if  living  after  such  interlocutory  judg- 
*'  ment,  or  if  he  died  after,  then  against  his  execu- 
"  tors  or  administrators,  to  shew  cause  why  damages 
*'  in  such  action  should  not  be  assessed  and  recover- 
'*  ed  by  him  or  them."  And  by  the  same  statute '', 
*'  if  there  be  iwo  or  more  plaintiffs  or  defendants y 
"  and  one  or  more  of  them  die,  if  the  cause  of 
"  action  survive  to  the  surviving  plaintiff  or  plain- 
*'  tiffs,  or  against  the  surviving  defendant  or  defen- 
*'  dants,  the  writ  or  action  shall  not  be  thereby 
**  abated;  but  such  death  being  suggested  upon  the 
"  record,  the  action  shall  proceed,  at  the  suit  of  the 
**  surviving  plaintiff  or  plaintiffs,  against  the  surviv- 
**  ing  defendant  or  defendants."  And  if  the  plaintiff 
become  bankrupt,  after  interlocutory  judgment,  his 
assignees  may  proceed  to  final  judgment '  and  exe- 
cution', in  the  bankrupt's  name,  without  a  scire  facias. 
So  where  the  plaintiff  after  verdict,  was  discharged 
under  an  insolvent  act,  the  court  held  that  the  assig- 
nee might  make  use  of  liis  name,  in  entering  up 
judgment,  and  talking  out  execution  \ 

The  judgment,   by  general  intendment  of  law, 
has  relation  to  the  first  day  of  the  term  whereof  it  is 

entered, 

1  §  7.  372.    378,    and     Winter     and 

«■  2  Wil3.  358.  374.  378.  others  v.  Kretchnian,   2   T.  R. 

»  3   T.   R.   437.   but  note,  45.   and   see   1   Mod.    93.    1 

there  was  a  scire  facias  after  Vent.  173.  S.  C.  5  Mod.  58.  I 

judgment,  to  warrant  execu-  T.  R.  463.                          \ 

tion,  in  the  cases  of  Gibbins  «  Abbias  v.  Barnard,  M.  35 

and  others  v.  Mantle,  2  Wils.  G.  III. 

-    Vol.  II.  2  B 


856  or  JUDGMENTS. 

entered'',  unless  any  thing  appear  on  the  record, 
shewing  that  it  cannot  have  that  relation ' ;  and  as 
against  the  defendant  and  his  heirs,  it  binds  a  moi- 
ety of  all  the  freehold  lands  and  tenements '%  which 
he  or  any  person  or  persons  in  trust  for  him  *,  was 
or  were  seised  of,  at  or  after  the  time  to  which  the 
judgment  relates.  And  a  court  of  equity  will  not 
oblige  a  judgment- creditor  to  wait,  till  he  is  paid 
out  of  the  rents ;  but  will  accelerate  the  payment, 
by  directing  a  sale  of  the  moiety  ^ .  Where  there 
is  a  term  attendant  on  the  inheritance,  a  judgment 
is  an  equitable  lien  on  the  inheritance,  and  conse- 
quently affects  the  term  '^\  but  generally  speaking, 
a  judgment  does  not  bind  leasehold  property,  which 
is  affected  only  by  the  writ  of  execution  ^,  and,  as 
against  purchasers,  by  the  delivery  of  it  to  the 
sheriff  ^ 

As  Xo  freehold  lands,  they  are  bound  at  common 
law,  from  the  time  of  the  judgment,  so  that  exe- 
cution may  be  had  of  these,  though  the  party  ali- 
ene  bond  fide  before  execution  sued  out.   There- 
fore 

n  3  Salk.  212.    1   Wils.  39.  the  lien  created  by  it.   1  Salk. 

7  T.  R.  2  .  In  actions  by  ori-  80. 

ginal^  the  judgment  seems  to  ^  Stat.  29  Car.  II.  c.  3.  §  10. 

relate  to  the  essom-day;  in  ac-  2  Vern.  248. 

tions  by  bill^  to  the  first  day  in  y  2  Atk.  610.  Amb.    17.  S. 

full  term.   See    1   Sel.  8.  and  C. 

the  cases  there  cited.  ^  2  Vera.  525. 

V  3  Bur.  1696.  a  Godb.  161.  8  Co.  171. 

w  Stat.  Westm.  2.  (13  Ed.  2  Nels.  Abr.  783. 

I.)  c.  18.    And   bringing  debt  b  Stat.  29  Car.  II.  c.  3.  i 

on  a  judgment  is  no  waiver  of  16. 


OF  JUDGMENTS.  851 

fore  if  a  man  has  judgment  for  a  debt,  and  the 
debtor,  before  execution  sued,  aUenes  by  fine,  and 
five  years  pass,  yet  the  plaintiff  may  still  sue  out 
execution  ^  But  if  one  article  to  buy  an  estate,  and 
pay  the  purchase-money,  and  afterwards  a  judgment 
is  recovered  against  the  vendor  by  a  third  person, 
who  had  no  notice,  yet  this  judgment  shall  not  in 
equity  affect  the  estate;  because  from  the  time  of 
the  articles,  and  payment  of  the  money,  the  vendor 
was  only  a  trustee  for  the  purchaser  '^.  In  such  case 
however,  it  must  be  understood,  that  the  considera- 
tion paid  is  somewhat  adequate  to  the  thing  purcha- 
sed ;  for  if  the  money  be  but  a  small  sum,  in  respect 
of  the  value  of  the  land,  this  shall  not  prevail  over  a 
mesne  judgment-creditor  ^  And  a  mortgagee  for  a 
valuable  consideration,  and  without  notice  ^  of  such 
a  covenant,  shall  hold  place  against  the  covenantee; 
for  in  this  case,  the  money  is  lent  upon  the  title  ajid 
credit  of  the  estate,  and  attaches  upon  the  land;  but 
it  is  not  so  in  the  case  of  a  judgment- creditor,  who 
(for  aught  appears)  might  have  taken  out  execu- 
tion against  the  person  or  goods  of  the  party, 
that    gave    the    judgment;    and    a    judgment    is 

only 

«:  1  Chan.  Cas.  268.  1  Mod.     was  held,  by  Lord  Chancellor 
217.  Taidot,  not  to  amount  to  con- 

d  1  P.  Wms.  278.  10  Mod.     structive    notice;     for     judj;:- 
468.    2  Eq.  Cas.  Abr.  683.  ments,  he  said,  are  infinite.  2 

e  1  P.  Wms.  282.  Eq.  Cas.  Abr.  682.  but  see 

f  Docketing    a    judgment     Amb.  680. 


852 


OF  JUDGMENTS. 


only  a  general  security,  not  a  specific  lien  upon  the 
land  ^. 

If  A.  and  B.  recover  several  judgments  against 
C,  and  A.  sue  out  an  elegit ^  and  have  a  moiety  of 
C's  lands  delivered  to  him,  and  then  B.  sue  out  an 
elegit,  the  sheriff  it  seems  can  only  extend  a  moiety 
of  the  remaining  lands".  But  if /?.  have  two  judg- 
ments against  (?.,  and  in  the  same  term  take  out  two 
elegitSy  on  the  one  he  may  have  a  moiety  of  the 
whole,  and  on  the  other  the  other  moieiy,  and  is  not 
restrained  on  the  latter,  to  a  moiety  of  the  moiety; 
for  in  judgment  of  law,  the  v/hole  term  is  but  as 
one  day '.  On  lending  money  therefore,  il"  the  lender 
take  two  several  bonds  and  warrants  of  attorney,  one 
for  a  part,  the  other  for  the  residue  of  the  money, 
and  enter  up  two  several  judgments  theieon,  of  the 
same  ternni,  he  may  take  the  \\'hoie  of  the  defen- 
dant's lands  under  them  ^ 

A.  a  trader,  seised  of  lands  in  fee,  gives  a 
Judgment  to  B.,  and  then,  in  consideration  of 
5000/.  paid  down,  and  650/.  to  be  paid  at  Christ- 
7nas,  articles  to  sell  the  lands  to  C.  and  let  him 
into  possession  at  Michaelmas,  and  afterwards 
becomes  bankrupt,  the  judgment  not  being  served 
and  executed,   and    the   650/.    remaining  unpaid, 

B.  shall 

t  1  P.  Wms.  279. 

^  Cro.  Eliz.  483.  2  Bac. 
Abr.  350.  Gilb.  Exec.  55,  6. 
But  qu.  whether  it  must  not 
be  understood  in   this    case, 


that  the  elegits  were  sued  out 
in  different  terms  ? 

i  Ilardr.  23. 

k  Gilb.  Exec.  56. 


OF  JUDGMENTS.  85-3 

B.  shall  only  come  in  pro  rata  with  the  rest  of  the 
creditors;  the  words  of  the  statute  21  Jac.  I.  c. 
19.  )  9.  being  full  and  plain,  that  all  the  creditors 
of  a  bankrupt,  unless  there  ia  a  mortgage,  shall 
be  equally  paid  \  But  if  A.  a  trader,  confesses 
judgment  to  B.  and  then  sells  and  conveys  the 
land,  for  a  valuable  consideration,  to  C.  and  af- 
terwards becomes  bankrupt,  it  seems  that  the 
judgment- creditor  shall  extend  the  land,  in  the 
hands  oft*.,  who  bought  prior  to  the  bankruptcy, 
this  not  prejudicing  the  other  creditors. 

On  a  judgment  against  A.  upon  his  own  bond, 
a  moiety  only  of  his  freehold  property  can  be  taken 
in  the  Jiands  of  his  heir'".  But  if  a  judgment  be 
obtained  against  an  heir,  on  the  obligation  of  his 
ancestor,  the  plaintiiT  was  at  common  law  entitled 
to  execution  out  of  the  whole  of  the  property,  which 
he  had  by  descent,  at  the  time  of  issuing  the  origi- 
nal writ ",  or  filing  the  bill ".  And  by  the  statute 
3  JV.  &.  M.  c.  14.  \  5.  "  in  all  cases  where  any 
*'  heir  at  law  shall  be  liable  to  pay  the  debt  of  his 
"  ancestor,  in  regard  of  any  lands,  tenements  or 
"  hereditaments  descending  to  him,  and  shall  sell, 
'*  aliene,  or  make  over  the  same,  before  any 
"  action  brought,  or  process  sued  out  against  him, 
*'  such  heir  at  law  shall  be  answerable  for  such  debt 

"  or 

I  1  P.  Wms.  737.  739.  a.  b.  3  Co.  12.  a.  2  Atk.   609, 

m  Dyer,  271.  a.  Carth.107.  10.  Amb.  16,  17.  S.  C. 

3  Bac.  Abr.  25.  o  Carth.   245.    and   see   2 

"  Plowd.  441.  Co.  Lit.  102.  Wms.  Saund.  7.  (4). 


854 


OF  JUDGMENTS. 


"  or  debts,  in  an  action  or  actions  of  dcbt^  to  the 
"  value  of  the  said  land,  so  by  him  sold,  aliened, 
"  or  made  over;  in  which  cases  all  creditors  shall 
"  be  preferred,  as  in  actions  against  executors  and 
"  administrators;  and  such  execution  shall  be  taken 
*'  out,  upon  any  judgment  or  judgments  so  obtained 
"  against  such  heir,  to  the  value  of  the  said  land,  as 
"  if  the  same  were  his  own  proper  debt  or  debts; 
'*  saving  that  the  lands,  tenements,  and  heredita- 
"  ments  bona  fide  aliened  before  the  action  brought, 
"  shall  not  be  liable  to  such  execution."  A  bond, 
therefore,  is  in  some  cases,  a  preferable  security  to 
a  judgment. 

The  judgment  against  an  he'ir^  on  the  bond  of 
his  ancestor,  is  general  or  special^.  In  debt  against 
an  heir,  who  pleaded  riens  per  discern,  or  any  other 
plea  which  was  false  within  his  own  knowledge, 
and  found  against  him,  the  judgment  at  common 
law  was  general,  to  recover  the  debt,  and  not 
special,  to  be  levied  of  the  lands  descended  "J.  So 
if  judgment  be  given  against  an  heir  by  ni/ii/  dicit  "j 
or  ?ion  sum  informattis^,  or  by  confession,  without 

shewing 


P2  Rol.  Abr.  70,  71.  and 
see  Vin.  Abr.  tit.  Heir,  C.  and 
Bac.  Abr.  tit.  Heir  and  Ances- 
tor, H. 

1  Dyer,  149.  a.  Bro.  Abr. 
iii.  Assets  fier  discent,  3.;  but 
see  the  statute  3  W.  and  M.  c. 


14.  §  6.  hy  which  the  judg- 
ment on  a  plea  of  riens  per  dis- 
cent,  seems  to  be  altered. 

••  Dyer,  344.  a.  b.  Plovrd. 
440.  Cro.  EHz.  692. 

s  Dyer,  344.  a.  b.  Plowd. 
440. 


OF  JUDGMENTS.  855 

shewing  in  certain  what  assets  he  has  by  descent  % 
the  judgment  is  general:  And  if  the  profits  of  the 
lands  descended,  from  the  death  of  the  ancestor 
to  the  time  of  bringing  the  action,  are  sufficient 
to  satisfy  the  demand,  and  the  plaintiff  will  shew  it 
to  die  court,  in  an  action  of  debt  against  an  heir, 
and  the  defendant  cannot  deny  it,  the  plaintiff 
shall  have  a  general  judgment,  and  execution 
presently".  But  in  an  action  of  debt  against  an 
heir,  if  he  acknowledge  the  action,  and  shew  the 
certainty  of  the  assets  which  he  has  by  descent, 
the  judgment  shall  be  special,  to  recover  the  debt, 
to  be  levied  of  the  lands  descended ''.  And  if  the 
defendant  plead  non  est  factum^  or  any  other  plea 
which  is  not  false  within  his  own  knowledge,  there 
shall  be  like  a  judgment  '\ 

By  the  statute  3  /F".  &  M.  c.  14.  S  6.  "  where 
'*  any  action  of  debt  upon  specialty  is  brought 
'^'  against  an  heir,  he  may  plead  riens  per  discent, 
"  at  the  time  of  the  original  writ  brought,  or  the 
"  bill  filed  against  him;  and  the  plaintiff  in  such 
**  action  may  reply,  that  he  had  lands,  tenements 
"  or  hereditaments  from  his  ancestor,  before  the 
*'  original  writ  brought,  or  bill  filed;  and  if  upon 
**  issue  joined  thereupon,  it  be  found  for  the 
"  plaintiff,  the   jury  shall  inquire  of  the  value  of 

"  the 

«  Dyer,  344.  a.  b.  Plowd.  -^  2  Rol.  Abr.  70.  Dyer, 
440.  but  see  Dyer,  149,  a.  149.  a.  373.  b. 

»  Dyw,  344.  b.  vv  Cro.  Car.  436, 7. 


856  OJ  JUDGMENTS. 

"'  the  lands,  tenements  or  hereditaments  so  dc- 
'*  scended,  and  thereupon  judgment  shall  be  given, 
''  and  execution  awarded,  as  therein  directed; 
"  but  if  judgment  be  given  against  such  heir,  by 
"  confession  of  the  action,  without  confessing  the 
''  assets  descended,  or  upon  demurrer,  or  nihil 
"  dicit^  it  shall  be  for  the  debt  and  damages, 
'*  without  any  writ  to  inquire  of  the  lands,  tene- 
"  ments  or  hereditaments  so  descended."  The  judg- 
ment against  a  devisee  upon  this  statute,  is  the  same 
as  against  an  heir  ". 

The  relation  of  judgments  to  the  first  day  of  the 
term,  is  taken  away,  as  against  purchaser's^  by  the 
statute  of  frauds  and  perjuries  ^;  by  which  it  is 
enacted,  that  "  the  judge  or  officer  who  shall  sign 
"  any  judgments,  shall,  at  the  signing  of  the 
*'  same,  set  down  the  day  of  the  month  and  year 
"  of  his  so  doing,  upon  the  paper-book,  docket, 
*'  or  record  which  he  shall  sign;  which  day  of  the 
"  month  and  year  shiill  be  also  entered,  upon  the 
"  margent  of  the  roll  of  the  record,  where  the  said 
*'  judgment  shall  be  entered.  And  such  judg- 
*'  ments,  as  against  purchasers  bond  Jide,  for  valu- 
*'  able  considerations,  of  lands,  tenements  or  he- 
*'  reditaments  to  be  charged  thereby,  shall  in 
*'  consideration  of  law,    be  judgments  only   from 

"  such 

«  See  the  statute,  §  3.  7.  counties  Palatine,  by  the  8  G. 

y  29  Car.  II.  c.  3.  §  14,  15.     I.  e.  35.  §  6. 
extended  to    Hales,  and  the 


OF  JUDGMENTS.  857 

"  such  time  as  they  shall  be  so  signed,  and  shall  not 
"  relate  to  the  first  day  of  the  term  whereof  they  are 
"  entered,  or  the  day  of  the  return  of  the  original,  or 
"filing  the  bail." 

This  statute  is  confined  to  purchasers;  and  does 
not  apply,  as  between  the  parties  to  the  suit.  There- 
fore if  the  defendant  die  in  vacation,  judgment  may 
still  be  entered  after  his  death,  as  of  the  preceding 
term,  when  he  was  living;  and  it  will  be  a  good 
judgment  at  common  law,  as  of  that  term"^;  but 
then,  the  roll  ought  to  be  brought  in  and  filed  be- 
fore the  essoign-day  of  the  subsequent  term  ^.  And 
it  is  said,  that  if  judgment  be  signed  in  term-time, 
and  in  the  subsequent  vacation  the  defendant  sell 
lands,  and  before  the  essoign-day  of  the  next  term 
the  plaintiff  enter  his  judgment,  it  shall  affect  the 
lands  in  the  hands  of  the  purchaser  ^. 

The  operation  of  judgments,  upon  purchasers 
and  mortgagees,  is  still  further  limited  and  restrain- 
ed by  the  4  &  5  IF.  &  Tlf.  c.  20.  ^  3.  by  which  it 
is  enacted,  "  that  no  judgment  not  doggcted  and 
"  entered,  according  to  that  act,  shall  affect  any 
"  lands  or  tenements,  as  to  purchasers  or  mort- 
"  gagees,   or   have   any   preference    against    heirs, 

"  executors 

^  1   Salk.  87.  3  Salk.   116.  6  T.  R.  368.  7  T.  R.  20. 

1    Ld.    Raym.    695.    2    Ld.  ^  1  Salk.  87.  2  Ld.  Raym. 

Raym.  766.  849.  869.  7  Mod.  850.  6  Mod.  191. 

2.  93.    S.  C.  2   Salk.   401.   7  ^  «  Mod.    191.    Tamen    Qu. 

Mod.  39.  S.  C.  3  Salk.  159.  if  the  judgment  be  not  docket- 

3  P.  Wms.  399.  Willcs,  428.  ed  at  the  time  of  the  sals? 

Vol.  II.  2C 


858  OF  JUDGMENTS. 

"  executors  or  administrators,  in  the  administration 
*'  of  their  ancestors,  testators,  or  intestates'  effects." 
By  this  statute,  a  debt  on  judgment  against  a  tes- 
tator or  intestate,  not  docketed  according  to  the  di- 
rection of  the  statute,  is  put  on  a  level  with  simple- 
contract  debts:  And  therefore,  on  a  plea  of  plene 
administrai}it,  to  debt  on  judgment  against  the  intes- 
tate, not  docketed,  the  defendant  may  give  in  evi- 
dence payment  of  bond  and  other  specialty  debts, 
which  exhausted  all  the  assets  '^.  And  where  leave  is 
given  to  enter  up  judgment  as  of  a  preceding  term, 
7iimc  pro  tiinc^  the  court,  in  order  that  it  may  not 
affect  purchasers  and  mortgagees,  will  order  it  to  be 
docketed  of  the  term  in  which  the  application  is 
made  ^. 

The  dogget^  or  as  it  is  commonly  called,  the  dock- 
et or  docqiiet^  is  an  index  to  the  judgment,  invented 
by  the  courts  for  their  own  ease,  and  the  security  of 
purchasers,  to  avoid  the  trouble  and  inconvenience 
of  tuiTiing  over  the  rolls  at  large  ^.  The  practice  of 
docketing  judgments  seems  to  have  first  obtained  in 
the  court  of  Common  Pleas,  where  the  dockets  were 
formerly  entered  on  a  separate  roll,  called  the  dock- 
et-roll or  common  docket;  which  was  of  so  higli 
an  authority,  as  even  to  warrant  an  amendment  of 
the  judgment  itself^.  But  in  this  court,  the  docket 

was 

c  6  T.  R.  384.  1  Esp.  Cas.  trix,  H.  35  G.  III. 

Xi.  Pri.  313.  S.  C.    1   Bos.  8c  e  Gilb.  C.  P.  164,  5. 

Pul.  30r.  f  T.    Raym.    39.   Sid.   70. 

d  Baker  v.   Baker,  Execu-  Cro.  Car.  574. 


OF  JUDGMENTS.  859 

was  originally  nothing  more  than  a  note  in  parch- 
ment or  paper,  containing  the  christian  and  sur- 
names of  the  plaintiff  and  defendant,  the  debt  and 
damages  recovered,  with  the  term  and  number  of 
the  judgment- roll  ^.  By  a  subsequent  regulation,  the 
defendants'  names  were  required  to  be  entered  in  a 
remembrance  or  docket  alphabetically,  for  better 
finding  out  the  judgments  ^.  And  at  length,  by  the 
statute  4  &  5  /T.  &  M.  c.  20.  \  2.  it  was  enacted, 
'  that  the  clerk  of  the  essoins  of  the  court  of  Com- 
'  mon  Pleas,  and  the  clerk  of  the  doggets  of  the 

*  court  of  King's  Bench,  &;c.  shall  make  an  alpha- 
'  betical  dogget,  by  the  defendants'  names,  o,f  all 

*  the  judgments  entered  in  their  respective  courts, 
'  of  Michaelmas  and  Hilary  terms,  before  the  last 
'  day  of  the  ensuing  terms;  and  of  the  judgments 
'  of  Easter  and  Trinity  terms,  before  the  last  day  of 
'  Michaelmas  term ;   under  the  penalty  of  100/. : 

'  Which  dogget  shall  contain  the  names  of  the 
'  plaintifl'  and  defendant,  with  the  addition  of  the 
'  latter,  (if  in  the  record  of  the  judgment,)  the  debt, 
'  damages  and  costs  recovered,  the  venue  and  num- 
'  ber  of  the  judgment- roll;  and  shall  be  fairly  put 

*  into  and  kept  in  books  in  parchment,  to  be  search- 
'  ed  and  viewed  by  all  persons,  at  reasonable  times, 
'  paying  for  every  term's  search  4</.  and  no  more.'' 

This 

kR.  E.  17  Jar.  1  h  R,E.  )657. 


860  or  JUDGMENTS. 

This  statute  did  not  supersede  the  former  prac- 
tice, of  docketing  the  judgment  in  parchment  or 
paper,  which  is  still  necessary  to  be  done  by  the  at- 
tornies,  on  entering  and  bringing  in  their  rolls;  but 
was  intended  to  operate,  in  addition  to  that  practice, 
by  requiring  the  dockets  to  be  entered  in  alphabeti- 
cal order,  b}'^  the  officers  of  the  court.  Before  the 
making  of  this  statute,  the  judgment  bound  the 
lands,  and  the  docket  was  nothing  more  than  an  in- 
dex, to  find  it  readily  '.  But  now  it  is  deemed  neces- 
sary, that  the  judgment  should  be  docketed,  in  order 
to  bind  the  lands,  as  to  purchasers  and  mortgagees : 
And  if  it  be  not  docketed '',  or  if  there  be  a  false 
docket,  which  is  as  none  \  though  a  right  judgment, 
the  purchasers  or  mortgagees  will  be  safe ;  and  in 
the  latter  case,  the  party  grieved  must  take  his  re- 
medy against  the  attorney  or  officer,  for  not  docket- 
ing it  truly. 

The  judgment  should  be  docketed  at  the  time  of 
bringing  in  the  roll,  or  entering  it  thereon,  if  already 
brought  in.  But  though  the  judgment  be  not  dock- 
eted, yet  under  particular  circumstances,  a  pur- 
chaser with  notice  may  be  affected  by  it,  in  a  court 
of  equity.  Thus,  where  a  bill  in  equity  w^as  filed, 
to  have  satisfaction  of  a  judgment,  against  a  pur- 
chaser of  the  equity  of  redemption  of  land,  or  to 

redeem 

i  Gilb.  C.P.  165.  11  Bac.  Abr.  103.  Gilb.  C. 

1 1  Str.  639.  and  see  Barnes,    P.    165.   1    Wils.  61.  2  Str. 

261,2.  1209.  S.C. 


OF   JUDGMENTS.  861 

redeem  incumbrances,  &cc.  and  it  appeared,  that  the 
purchase  was  made  in  1718,  and  the  judgment  not 
docketed  till  1721;  the  defendant  insisted  on  the 
statute  4  &  5  /F.  Sc  M.  c.  20. :  On  tlie  other  hand 
it  was  contended,  that  the  defendant  (the  purchaser) 
had  notice  of  this  judgment,  and  an  allowance  for  it 
in  the  purchase,  and  that  raised  an  equity  for  the 
plaintiff  against  him.  By  Lord  Chancellor  Maccks- 
Jield^  "  it  is  plain  the  defendant  had  notice  of  the 
judgment,  and  did  not  pay  the  value  of  the  estate, 
and  that  is  a  strong  presumption  of  an  agreement  to 
pay  off  the  judgment;  and  since  the  plaintiff  cannot 
proceed  at  law  against  the  defendant  upon  the  judg- 
ment, for  want  of  docketing  it  in  due  time,  he 
ought  to  be  relieved  in  a  court  of  equity :"  Decreed, 
that  the  defendant  pay  to  the  plaintiff,  the  money 
bond  fide  due  upon  the  judgment  •". 

If  an  attorney  neglect  to  enter  and  docket  the 
judgment  in  due  time,  by  which  a  loss  arises  to  his 
client,  it  seems  that  he  is  liable  to  an  action " :  And 
Lord  Mansfield  intimated,  that  it  very  much  con- 
cerned the  chief-clerk,  to  take  care  that  judgments 
be  actually  entered  up  on  the  roll  in  due  time,  and 

docketed ; 

">  7  Vin.  Abr.  p.  53.  2  Eq.  being  docketed,  notice  to  the 

Cas.  Abr.  684.  but  see  7  Vin.  purchaser  or  no  notice  is  im- 

Abr.  p.  54.  where  it  is  said,  material.  And  see  Cowp.  2S0. 

that  the  statute  being  express  712. 

and  positive,  that  a  judgment  "  1  Sir.  6."''J. 
shall  not  bind  lands,  without 


B62  OF  JUDGMENTS. 

docketed ;  for  that  after  he  has  received  his  fees  for 
making  such  entr}^,  he  would  be  liable  to  an  action 
upon  the  case,  to  be  brought  by  a  purchaser,  who 
should  have  become  charged  with  it,  and  had  search- 
ed the  roll,  without  finding  it  entered  up :  And  he 
said,  that  the  attorney  who  had  undertaken  to  do 
this,  and  neglected  it,  would  be  liable  mdeed  to  the 
chief-clerk;  but  still  the  chief-clerk  \vould  be  liable 
to  the  purchaser,  who  had  suffered  by  this  neglect  °. 

There  is  still  another  circumstance,  necessary  to 
give  effect  to  the  judgment,  as  against  purchasers 
and  mortgagees  of  lands  in  Middlesex  and  Tor ks hire; 
namely,  that  it  should  be  registered:  for,  by  the  5 
A7m.  c.  18.  ^  4.  and  several  subsequent  statutes'', 
"  no  judgment  shall  affect  or  bind  any  manors, 
"  lands,  tenements  or  hereditaments,  in  those  coun- 
"  ties,  but  only  from  the  time  that  a  memorial  of 
"  such  judgment,  shall  be  entered  at  the  rcgister- 
*'  office,  in  such  manner  as  therein  is  directed." 

During  the  same  term  in  which  the  judgment 
is  given,  it  is  amendable  at  common  law,  in  form 
or  in  substance  *> ;  but  after  that  term,  it  is  amend- 
able no  further  than  is  allowed  by  the  statutes  of 

amend- 

o  2  Bur.  722.  Sel.   537.    Imp.   K.    B.    401. 

P6    Ann.   c.   35.    §    19.    7  Append.  Chap.  XXXIX.  §  76, 

Ann.  c.  20.  §  18.  8  G.  II.  c.  &c. 

6.  §  1.  8c  18.  For  the  mode  of  i   8    Co.    157.  Gilb.  C.  P. 

registering  judgments,  see  1  108. 


OF  JUDGMENTS.  865 

amendments  *■.  Upon  these  statutes  it  has  been  hol- 
den,  that  if  there  be  any  thing  to  amend  by,  the 
judgment  may  be  amended  in  point  of  form,  for  the 
misprision  of  the  clerk  " ;  and  it  is  amendable  by  the 
verdict  ^  In  a  qui-tam  action  for  a  penalty,  on  the 
statute  of  usury,  it  is  not  cause  of  error  to  enter  a 
judgment  of  misericordia'^:  And  in  other  actions, 
the  want  of  a  capiatur  or  misericordia^  or  the  sub- 
stitution of  one  for  the  other,  is  aided  by  the  sta- 
tutes of  jeofails  "^ ;  which  have  been  construed  to 
extend  to  the  addition  of  a  capiatur^  where  none 
lies'":  And  the  loss  of  the  judgment-roll  may  be 
supplied  by  a  new  entry  ''. 

«•  1  Wils.  61.  2   Str.   1209.  V  16  8c  17   Car.  II.  c.  8.  4 

S,  C.  4  Bur.  1988.  Ann.  c.  16.  §2i 

s2  Str.    1132.    1156.    1182.  w  i  Str.  313. 

5  Bur.  2730.  3  T.  R.  349.  ^   Id.    141.  2    Str.    833.    2 

t  2  Str.  787.  AntCy  662.  Bur,  722. 

«  6  T.  R.  255. 


CHAP- 


[     864     ] 


CHAPTER  XL. 


Of  Costs. 


TNCIDENT  to  the  judgment  are  the  Costs ^  or 
expences  of  the  suit;  which  are  interlocutory  or 
final:  the  former,  or  such  as  are  awarded  on  inter- 
locutory matters,  arising  in  the  course  of  the  suit, 
have  been  already  considered,  in  treating  of  the  mat- 
ters to  which  they  relate;  the  latter,  or  such  as  de- 
pend on  the  final  event  of  the  suit,  will  be  the  sub- 
ject of  the  present  chapter  *. 

No  final  costs  were  recoverable,  by  the  plaintiff 
or  defendant,  at  common  law  *".  But  by  the  sta- 
tute of  Gloucester^  (6  Ed'Ui.  I.)  c.  1.  §  2.  it  is  pro- 
vided, "  that  the  demandant  may  recover  against 
"  the  tenant,  the  costs  of  his  ijorit  purchased, 
"  (which,  by  a  liberal  interpretation,  has  been 
"  construed  to  extend  to  the   <whole   costs   of  his 

"  suit,) 


^  The  subject  of  costs,  in- 
terlocutory as  well  as  final,  is 
treated  of  in  a  clear  and  per- 
spicuous manner  by  Mr.  Hid- 
lock:  And  the  table  of  costs,  by 
Mr.  Palmer,  will  also  be  found 
a  valuable  acquisition  to  the 
profession,  as  it  contains  a  full 
collection  of  bills  of  costs,  ac- 


curately drawn,  and  methodi- 
cally arranged,  by  which  the 
practiser  may  not  only  know 
how  to  charge  for  his  business, 
but  may  see  beforehand  in 
what  order  it  is  to  be  conduct- 
ed. 

'•  :  Inst.  288.  Hard.  152. 


' 


OF  COSTS..  865 

"  suit%)  together  with  the  damages  given  by  that 
"  statute;  and  that  this  act  shall  hold  place,  i?i  all 
^'  cases  where  a  man  recovers  damages.''^  This  was 
the  origin  of  costs  de  incremento  '^:  And  hence  the 
plaintiff  has,  generally  speaking,  a  right  to  costs, 
in  all  cases  where  he  was  entitled  to  damages,  an- 
tecedent to,  or  by  the  provisions  of,  the  statute  of 
Gloucester  *= ;  as  in  assumpsit,  covenant,  debt  on  con- 
tract, case,  trover,  trespass,  assault  and  batterj'^, 
replevin,  ejectment,  dower  unde  nihil  habet  \  Ike. ; 
or  where,  by  a  subsequent  statute,  double  or  treble 
damages  are  given,  in  a  case  where  single  damages 
were  before  recoverable^;  as  upon  the  2  Hen.  IV. 
c.  11.  for  wTongfully  suing  in  the  admiralty  court  ^, 
&c.  And  he  has  also  a  right  to  costs,  in  all  cases 
where  a  certain  penalty  is  given  by  statute  to  the 
party  grieved ' ;  for  otherwise  the  remedy  might 
prove  inadequate. 

But  the  statute  of  Gloucester  did  not  extend  to 
cases  where  no  damages  were  recoverable  at  com- 
mon law,  as  in  real  actions '',  scire  facias^  prohibi- 
tiofi  •,    &c. ;    nor   where   double  or   treble  damages 

were 

>^  2  Inst.  288.  Abr.  574.  Skin.  363.  Carth. 

*Gilb.  Eq.  Rep.  195.  230.     1     Salk.     206.     1     Ld. 

elOCo.  116.  a.  Raym.      172.     Willes,     440. 

f2Bac.Abr.  148.^«^e,799.  Say.  Costs,  11,  7  T.  R.  267. 

K  10   Co.    116.  a.     2   Inst.  1  H.  Blac.  10. 

289.  Cowp.  368.  k  Ante,  799. 

h  Ante,  800.  '  Comb.  20. 
iCro.    Car.    560.    I    Roll. 
Vol.  IT.                     2D 


866  OF  COSTS. 

were  given  by  a  subsequent  statute,  in  a  new  case 
where  single  damages  were  not  before  recoverable; 
as  in  ivaste,  against  tenant  for  life  or  years  "\  upon 
the  statute  of  Gloucester,  (6  Edw,  I.)  c.  5. ;  for  not 
setting  out  tithes  %  upon  the  2  &  3  Edw,  VI.  c. 
13.;  or  for  driving  a  distress  out  of  the  hundred", 
upon  the  1  &  2  Ph.  &  M.  c.  12.  Nor  does  this 
statute  extend  to  popular  actions,  where  the  whole 
or  part  of  a  penalty  is  given  by  statute  to  a  com- 
mon informer  P;  as  upon  the  5  Eliz.  c.  4.  §  31. 
for  exercising  a  trade,  without  having  served  an 
apprenticeship;  or  upon  the  statute  of  usury,  12  Ann^ 
Stat.  2.  c.  16.  In  these  and  such  like  cases  there- 
fore^  the  plaintiff  is  not  entitled  to  costs,  unless 
they  are  expressly  given  him  by  the  statute;  but 
wherever  they  are  so  given,  he  is  of  course  entitled 
to  them. 

Where  single  damages  are  given  by  a  statute, 
subsequent  to  the  statute  of  Gloucester,  in  a  new- 
case  wherein  no  damages  were  previously  recover- 
able, it  has  been  doubted  whether  the  plaintift' 
shall  recover  costs,  if  they  are  not  mentioned  in 
the  statute.  The  rule  in  PilfoWs  case  is,  that  he 

shall 

™  2  Hen.  IV.   17.  9  Hen.  v  l  Roll.  Abr.  574.  1  Vent. 

VI.    66.   b.     10   Co.    116.   b.  ISS.-Carth.  231.   1  Salk.  206. 

2  Inst.  289.  Jnte,  800.  1  Ld.  Raym.  172.  Cas.  Pr.  C. 

"Moor,    915.     Noy,    136.  B.    87.   Barnes,    124.    S.   C. 

Hardr.  152.  Cowp.  366.    1    H.  Blac.    10, 

0  2  Inst.  289.    Dyer,    177.  Bui.  .AL  Pn.  3,33. 
but   see    Cro.    Car.    560.    1 
Roll.  Abr.  574. 


OF  COSTS.  867 

shall  not  •" :  and  accordingly  it  is  holden,  that  he  is 
not  entitled  to  costs  in  quare  impedit  \  wherein 
damages  are  given  by  the  statute  of  Westm.  2. 
(13  Ed-w.  I.)  c.  5.  §  3.  But  the  rule  in  Pilf old's 
case  is  contradicted  by  lord  Coke  himself',  who 
says,  that  "  this  clause  (respecting  the  statute  of 
*'  Gloucester''^  holding  place,  in  all  cases  where  a 
"  man  recovers  damages)  doth  extend  to  give 
"  costs,  where  damages  are  given  to  any  demand- 
"  ant  or  plaintiff,  in  any  action,  by  any  statute 
"  made  after  this  parliament."  And  the  rule  has 
been  since  narrowed,  by  several  modem  decisions; 
from  whence  it  may  be  collected,  that  the  plain- 
tiff is  entitled  to  costs,  in  all  cases  where  single  da- 
mages are  given  by  statute  to  the  party  grieved  ^j 
although  costs  are  not  particularly  mentioned  in  the 
statute. 

In  several  of  the  foregoing  cases,  wherein  costs 
were  not  recoverable  by  the  plaintiff  at  common 
law,  they  are  expressly  given  him  by  the  statute  8 
h  9  PF,  III.  c.  11.  by  which  it  is  enacted,  that 
*'  in  all  actions  of  waste,  and  actions  of  debt  upon 
"  the  statute  for  not  setting  forth  tithes,  wherein 
"  tlie  single  value  or  damage  found  by  the  jury 

"  shall 

q  10  Co.  116.  a.  «  2  Inst.  289. 

'■2   Hen.   IV.   17.  27  Hen.        '2  Wils.  91,  Barnes,  151. 

VI.     10.    10  Co.     116.    a.    2  S.    C.     3    Bur.     1723.    Say. 

Inst.  28l  362.  Barnes,    140.  Costs,   10.  S.  C.   1  T.  R.  71. 

and  see  Cro.  Car.  360.  Carth.  6  T.  R.   355.  7  T.  R.  267. 

231.  Covvp.  367,  8.  ante,  800.  but  see  Cowp.  367,  8, 


868  OP  COSTS. 

"  shall  not  exceed  the  sum  of  twenty  nobles;  and 
"  in  all  suits  upon  any  writ  or  writs  of  scire  facias, 
'•'  and  suits  upon  prohibitions,  the  plaintiff  obtaining 
'■'■  judgment,  or  any  award  of  execution,  after  plea 
"  pleaded  or  demurrer  joined  therein,  shall  likewise 
"  recover  his  costs  of  suit;  and  if  the  plaintiff  shall 
''  become  nonsuit,  or  suffer  a  discontinuance,  or  a 
''  verdict  shall  pass  against  him,  the  defendant  shall 
"  recover  his  costs,  and  have  execution  for  the  same 
"  \yY  capias  ad  satisfaciendum, fieri  facias,  ox  elegit.'''' 
Upon  this  statute  there  have  been  the  following 
determinations. 

In  an  action  of  debt  for  the  penalty  of  the  statute 
2  &  3  Edw.  VI.  c.  13.  for  not  setting  out  tithes, 
^vith  a  count  for  the  single  value,  after  a  demurrer 
to  the  declaration,  the  parties  submitted  to  arbi- 
tration, and  the  arbitrator  awarded  the  single  value 
to  be  less  than  twenty  nobles  (6/.  13^.  4^/.);  the  court 
held,  that  the  plaintiff  v/as  not  entitled  to  costs  on 
the  counts  for  the  penalty,  under  the  statute  of  8  & 
9  JV.  III.  c.  11.  the  value  not  having  been  found 
by  a  jury ;  but  they  allowed  him  to  have  the  costs 
taxed,  on  the  count  for  the  single  A^alue  ". 

In  Prohibition,  the  rule  is,  that  the  plaintiff,  suc- 
ceeding after  plea  pleaded  or  demurrer  joined,  ought 
to  have  his  costs  from  the  time  of  the  suggestion, 

or 

^  1  H.  Blac.  107.  and  see  Barnes,  150. 


li 


OF  COSTS.  869 

or  first  motion  for  a  prohibition,  and  all  costs  inci- 
dent and  subsequent  thereto ' .  And  where  the  de- 
fendant pleaded  nothing  to  the  merits,  but  only  that 
he  did  not  proceed  in  the  spiritual  court  after  the 
prohibition,  the  court  ordered  the  defendant  to  pay 
the  plaintiff's  costs  of  the  proceedings  in  prohibi- 
tion '\  Where  the  defendant  in  prohibition  lets 
judgment  go  by  default,  the  plaintiff  is  entitled,  by 
the  common  law,  to  a  Mrit  to  inquire  of  his  damages., 
for  the  contempt  in  proceeding  after  the  prohibition 
delivered ;  and  of  consequence,  by  the  statute  o^  Glou- 
cester., to  his  costs  "^.  In  this  case  however,  the  plain- 
tiff is  only  entitled  to  costs,  from  the  time  that  the 
rule  for  a  prohibition  was  made  absolute,  as  the  de- 
fendant could  not  possibly  be  in  contempt  before  ^ : 
And  where  the  plaintiff  was  nonsuited,  it  was  holden 
that  the  defendant  ought  only  to  have  tlie  costs  of 
the  nonsuit,  and  not  what  were  incurred  by  oppo- 
sing the  rule  to  shew  cause,  why  the  writ  of  prohi- 
bition should  not  be  granted  \  If  judgment  be 
given  for  the  plaintiff,  as  to  part  of  what  is  in  issue, 
he  is  entitled  to  costs,  although  a  consultation  be 
granted  as  to  the  residue  =*:  And  in  like  manner,  if 
the  defendant  prevail  as  to  part,  he  is  entided  to 

costs. 

^  Cas.  Pr.  C.  B.  11.  1  Str.        y  Id.2\. 
s:.  2  Str.  1062.  z  Say.  Costs,  137. 

''•'  Barnes,  148.  a  2  Str.  1062,  5-. 

-  Cas.  Pr.  C.  B.  20, 


870  OF  COSTS. 

costs  ^.  But  it  seems,  that  if  the  defendant  succeed 
upon  demurrer,  he  is  not  entitled  to  costs'';  this 
being'  a  casus  omissus  out  of  the  statute.  There  is  a 
proviso  in  the  statute  ^^  that  it  shall  not  extend  to 
executors  or  administrators;  and  hence  it  has  been 
determined,  that  in  prohibition,  they  are  not  hable 
to  the  payment  of  costs  "". 

The  plaintiff's  general  right  to  costs  being  thus 
settled  and  established,  upon  the  footing  of  the 
statute  of  Gloucester^  has  been  since  altered,  re- 
strained and  modified,  by  subsequent  statutes. 
The  first  statute  that  restrained  the  plaintiff's 
right  to  costs,  was  the  43  Eliz.  c.  6.  (extended 
to  Wales,  and  the  counXiQs-paladney  by  the  11  & 
12  /F.  III.  c.  9.);  by  which  it  is  enacted,  that 
"  if  in  any  personal  action,  to  be  brought  in  any 
*'  of  her  majesty's  courts  of  Westminster,  not  being 
"  for  any  title  or  interest  of  lands,  nor  concerning 
"  the  freehold  or  inheritance  of  any  lands,  nor  for 
"  any  battery,  it  shall  appear  to  the  judges  of  the 
"  same  court,  and  be  so  signified  by  the  justices 
"  before  whom  the  same  shall  be  tried,  that  the 
"  debt  or  damages  to  be  recovered  tlierein  shall 
"  not  amount  to  the  sum  of  forty  shillings,  that 
"  in  every  such  case,  the  judges  or  justices  before 
''  whom  such  action   shall   be  pursued,  shall  not 

"  award 

i>  Barnes,  138,9.  *=  Cas.   Pr.  C.  B.   158.  Pr. 

c  Bryme7-  and  Atkyns,  H.  Reg.    118.  Barnes,   127.   129. 

22  Geo.  III.  C.  B.  S.  C.  3  East,  202. 
A%5. 


OF   COSTS.  871 

"  award  to  the  plaintiff  any  more  costs,  than  the 
"  sum  of  the  debt  or  damages  so  recovered  shall 
*'  amount  to,  but  less  at  their  discretion."  The 
intention  of  this  statute  was  to  confine  trifling 
actions  to  inferior  courts^;  and  a  certificate  may- 
be granted  upon  it,  at  any  time  after  the  trial  of 
the  cause  •''.  The  first  instance  of  a  certificate  being 
granted  upon  this  statute,  was  in  the  case  of  White 
V.  Smith,  E.  17  Geo.  II. ;  wherein  Willes  Ch.  J. 
certified  in  an  action  for  taking  sand  \  And  since 
that  time,  there  have  been  several  instances  of  such 
certificates '.  But  as  the  judges,  for  a  long  time, 
were  unwilling  to  certify  upon  this  statute,  think- 
ing it  hard  to  deprive  a  plaintiff  of  his  right  to  costs, 
merely  because  he  had  resorted  to  a  superior  court, 
when  perhaps  he  could  not  have  obtained  justice 
in  an  inferior  one,  the  legislature  was  obliged  to 
inteqiose  its  authority,  still  farther  to  guard  against 
trifling  and  vexatious  actions. 

Thus,  by  the  3  Jac,  I.  c.  15.  \  4.  it  is  enacted, 
that  "  if  in  any  action  of  debt,  or  action  upon  the 
*'  case  upon  an  assumpsit  for  the  recovery  of  any 
"  debt,  to  be  sued  or  prosecuted  against  any  citi- 
*'  zen  and  freeman  of  the  city  of  London,  or  any 
•'  other  person,  being  a  victualler,   tradesman  or 

"  labouring 

f  Gilb.  Eq.  Rep.  196.  S.  C.  3  Wils.  325. 
Gilb.  C.  P.261,  2.  i2  Str.   1232.   1   Wils.  93. 

K  Say.    Costs,    18.     3    T.  S.  C.  3  Wils.  325.  Say,  Rep. 

R.  38.  (d).  250.    2   Wils.   258.    3    T.   K 

>»  2  Str,   1232.    I  Wils.  93.  sr. 


872  OF  COSTS. 

"  labouring  man,  inhabiting  within  the  said  city 
"  or  the  liberties  thereof,  in  any  of  the  king's  courts 
"  at  Westminster^  or  elsewhere  out  of  the  court  of 
"  requests  for  the  same  city,  it  shall  appear  to  the 
"  judge  or  judges  of  the  court  Avhere  such  action 
*'  shall  be  sued  or  prosecuted,  that  the  debt  to  be 
"  recovered  by  the  plaintiff  shall  not  amount  to 
"the  sum  of  forty  shillings,  and  the  defendant 
*'  shall  duly  prove,  either  by  sufficient  testimony  or 
"  his  own  oath,  that  at  the  time  of  commencing 
"  such  action,  the  defendant  was  inhabiting  and 
"  rcsiant  in  the  city  of  London  or  the  liberties 
"  thereof,  the  said  judge  or  judges  shall  not  allow 
"  to  the  plaintiff  any  costs  of  suit,  but  shall  award 
*'  the  plaintiff  to  pay  so  much  ordinary  costs  to  the 
*'  defendant,  as  the  defendant  shall  justly  prove, 
"  before  the  said  judge  or  judges,  it  hath  truly 
"  cost  him  in  defence  of  the  suit." 

The  jurisdiction  of  the  court  of  requests  for 
London  v\as  extended,  by  the  14  Geo.  II.  c.  10. 
to  "  e'Dery  citizen  and  freeman  of  the  city  of  Lon- 
"  don^  and  every  other  person  and  persons  inhabit- 
"  ing  within  the  said  city  or  its  liberties,  and  also 
"  to  persons  renting  or  keeping  any  shop,  shed, 
"stall  or  stand,  or  seeking  a  livelihood  there,  who 
"  have  debts  owing  them,  not  exceeding  the  sum 
*'  of  forty  shillings,  by  any  person  or  persons  inha- 
"  biting  or  seeking  a  livelihood  within  the  said  city 
"  or  its  liberties,  during  their  respective  inhabi- 
"  tancy  or  seeking  a  livelihood  as  aforesaid  ^"  And 

by 

.i  See  5  T.  R.  535.  I  East,  353,  353.  (c).  S.  C.  riteil 


OF  COSTS.  873 

by  the  39  h  40  Geo.  III.  c.  104'^.  it  was  still  further 
extended  to  "  debts  not  exceeding  the  sum  of  51 K 
"due  to  any  person  or  persons,  whether  residing 
"  within  the  city  of  London  or  elsewhere,  or  to  bo- 
"  dies  politick  or  corporate,  and  fraternities  or  bro- 
"  therhoods,  whether  corporate  or  not  corporate,  from 
"  any  person  or  persons,  residing  or  inhabiting  with- 
"  in  the  said  city  or  its  liberties,  or  keeping  any 
*'  house,  warehouse,  shop,  shed,  stall  or  stand,  of 
"  seeking  a  livelihood,  or  trading  or  dealing  within 
"  the  same  city  or  liberties '".  And  if  any  action  or 
"  suit  shall  be  commenced  in  any  other  court  than 
**  the  said  court  of  requests,  for  any  debt  not  ex- 
"  ceeding  the  sum  of  5/.,  and  recoverable  by  virtue 
"  of  the  former  acts,  or  of  this  act,  in  the  said  court 
"  of  requests,  the  plaintiff  or  plaintiffs  in  such  ac- 
*'  tion  or  suit  shall  not,  by  reason  of  a  verdict  for 
"  him,  her  or  them,  or  otherwise,  have  or  be  entitled 
"  to  any  costs  whatsoever;  and  if  the  verdict  shall 
"  be  given  for  the  defendant  or  defendants  in  sucli 
*'  action  or  suit,  and  the  judge  or  judges  before 
*'  whom  the  same  shall  be  tried  or  heard,  shall 
**  think  fit  to  certify  that  such  debt  ought  to  have 
"  been  recovered  in  the  said  court  of  requests,  then 
"  such  defendant  or  defendants  shall  ha\e  double 
"  costs,  and  shall  have  such  remedy  for  recovering 

"  the 

•«  This  act  of  parliament  took     on  the  9th  of  July  preceding, 
effect  from  the  30th  o{  Sefiiem-     2  East,  135. 
ber   1800,  and   not    from   the         '§2. 
passing  of  the  act,  which  was         '"  §  5. 
I  Vol.  II.  2E 


874  OF  COSTS. 

"  the  same,  as  any  defendant  or  defendants  may  have 
"  for  his,  her  or  their  costs,  in  any  cases  by  lavv'\" 
This  act  of  parHament  has  been  construed  to  extend 
to  an  action  of  debt  for  less  than  five  pounds,  on  the 
judgment  of  a  superior  court  °. 

Towards  the  latter  end  of  the  last  reign,  several 
acts  of  parliament  were  also  made,  establishing  courts 
of  conscience  in  various  districts,  in  and  about  the 
metropolis ;  as  in  the  town  and  borough  of  South- 
uoark,  &c.  by  the  22  Geo.  II.  c.  47.  (explained  and 
amended  by  the  32  Geo.  II.  c.  6.);  in  the  city  and 
liberty  of  IVestminste?;  and  part  of  the  dutchy  of 
Lancaster,  by  the  23  Geo.  II.  c.  27.  (explained  and 
amended  by  tlie  24  Geo.  11.  c.  42.);  and  in  the  Tow- 
er-hamlets, by  the  23  Geo.  II.  c.  30.  And  by  the  23 
Geo.  II.  c.  33.  the  county  court  of  Middlesex  was 
put  on  a  different  footing,  for  the  more  easy  and  spee- 
dy recovery  of  small  debts. 

In  these  acts  of  parliament  there  are  exceptions, 
relating  to  particular  causes  and  pejsons,  of  which, 
and  over  whom,  the  courts  have  no  jurisdiction. 
Thus,  in  the  3  Jac.  I.  c.  15.  there  is  an  exception 
or  proviso  ^,  that  "  it  shall  not  extend  to  any  debt 
*'  for  rent  upon  any  lease  of  lands  or  tenements,  or 

"  any 

n§  12.  ment  of  the  court  of  requests  for 

•^  2  Bos.  &  Pul.  588.  but  see  London.    Sed    quxre,   whether 

3  Esp.    Cas.   M.     Pri.   280.  the  plaintiff  would  have  been 

where  an   action  of  debt  was  entitled  to  costs  in  such  action, 
brought  in  a  superior  court  for         p  §  6.  and  see  the  statute  39 

less  than  five  poundsonajudg-  Sc  40  G.  III.  c.  104.  §  1 1. 


il 


OF  COSTS.  875 

"  any  other  real  contracts,  nor  to  any  other  debt 
'*  that  shall  arise  by  reason  of  any  cause  concem- 
*'  ing  a  testament  or  matrimony,  or  any  thing 
*'  concerning  or  properly  belonging  to  the  eccle- 
*'  siastical  court,  although  the  same  be  under  for- 
"  ty  shillings."  And  there  is  a  similar  exception 
in  the  court  of  conscience  acts  for  fVeswiinster  ■*,  and 
the  Tower  hamlets'' \  which  exception  has  been  con- 
strued to  apply  in  London,  to  an  action  for  use  and 
occupation  ^ :  and  the  court  of  conscience  act  there 
does  not  extend  to  cases,  where  the  plaintiff  recovers 
less  than  forty  shillings,  in  a  special  action  on  the 
case,  for  the  breach  of  an  agreement  *.  Also  it  is  a 
constant  and  invariable  rule,  that  none  of  the  court  of 
conscience  acts  extend  to  cases,  Avhere  the  sum  re- 
covered is  reduced  under  forty  shillings,  by  means 
of  a  set-off '',  or  tender  "'.  Where  a  cause  is  referred 
to  arbitration,  and  the  costs  are  directed  to  abide  the 
event  of  the  suit,  the  plaintiff,  we  have  seen,  is  not 
entitled  to  them,  if  it  appear  by  the  award  that  his 
original  demand  was  under  forty  shillings,  and  he 
might  have  recovered  it  in  a  court  of  conscience '^ 

The 

1  22  Geo.  II.  c.  47.  §  16.  Pul.  223.  But  it  is  otherwise, 

r  Doug.  245.  where  the  plaintiff's  demand  is 

s  Id.  244.  but  it  is  otherwise  reduced  under  forty  shillings, 

in  Middlesex.  2  Bos.  &  Pul.  29.  by  payments  in  part.  Barnes, 

t  5  T.  R.  529.  353.  4  Bur.  2133. 

1  2  Str.  1191.   1  Wils.    19.  ^  Doug.  448,  9. 

S.  C.  2  Wils.  68.  3  Wils.  48.  w  Ante,  762,  3. 

Say.  Costs,  65.  S.  C.  1  Bos.  & 


876  OF  COSTS. 

The  court  in  one  instance  permitted  a  suggestion  to 
be  entered  on  the  roll,  in  an  action  brought  by  an  ad- 
mmistrator  "^ :  But  in  an  action  brought  against  an  ex- 
ecutor ^  they  refused  it^;  saying,  it  could  not  be 
meant  to  give  the  court  of  conscience  a  jurisdiction 
over  executors;  and  that  if  there  was  no  express  ex- 
ception, there  was  one  implied  from  the  nature  and 
reason  of  the  thing.  An  attorney  is  nqt  subject 
to  the  jurisdiction  of  the  county  court  of  Middlesex  ^\ 
but  in  London^  Westminster^  and  the  Tower  hamlets^ 
he  is  expressly  subjected  thereto  ''.  And  where  a 
person  is  sued  in  a  superior  court,  for  a  debt  under 
forty  shillings,  he  may  move  the  court  to  stay  the 
proceedings  ^ 

The  mode  of  taking  advantage  of  these  statutes  is 
hy  plea  or  suggestion.  Where  there  is  a  prohibitory 
clause  in  the  act,  declaring  that  "  no  action  for  any 
"  debt  under  fort}^  shillings,  and  recoverable  in  the 
*'  court  of  requests,  shall  be  brought  against  any 
"  person  within  the  jurisdiction  thereof,  in  any  other 
**  court  whatsoever,"  as  in  Westminster y  the  proper 
mode  of  taking  advantage  of  the  act  is  by  pleading 
it,  or  giving  it  in  evidence  under  the  general  issue  "^ : 
And  if  that  mode  be  not  adopted,  the  court  will  not, 
after  verdict,  enter  a  suggestion  on  the  record,  that 
the  defendant  lived  within  the  jurisdiction,  or  stay 

the 

X  Doug.  246.  S3  e  2  Bos.  8c  Pul.  29. 

y  Id.  263.  Stat.  14   Geo.  II.  ^  Ante.,  265. 

.:.  10.  5  T.  R.  535.  Id.  529.  l'  Ante.,  465. 

I  2    Wils.  42.  Doug.   380.  =  2  H.  Blac.  352. 
Bur.  1583.  «em6.  contra;  and 


OF  COSTS.  877 

the  proceedings  ^.  The  Tower-hamlets  act  has  the 
same  prohibitory  clause ;  and  though  it  gives  no 
form  of  plea,  yet  it  may  be  pleaded,  or  the  facts 
which  bring  a  case  within  it  may  be  given  in  evi- 
dence under  the  general  issue,  to  nonsuit  ihe  plain- 
tiffs, or  obtain  a  verdict  against  him  ^  In  the  Lo?i- 
don  act,  as  well  as  in  the  acts  for  Sout/iivark  and 
Middlesex,  there  is  no  such  prohibitory  clause ;  and 
therefore  the  proper  mode  of  proceeding  upon  these 
acts  is,  for  the  defendant  to  apply  to  the  court,  by  af- 
fidavit,  for  leave  to  enter  a  suggestion  on  the  roll,  of 
^he  facts  necessary  to  entitle  him  to  the  benefit  of  the 
act  ^:  which  suggestion  may  be  traversed,  or  demur- 
red to ''.  The  application  for  leave  to  enter  a  sugges- 
tion, should  be  made  before  final  judgment  signed  ': 
And  where  the  plaintiff  demurred  to  the  suggestion, 
which  was  adjudged  against  him,  the  costs  of  the  ap- 
plication were  allowed,  as  well  as  of  the  trial  and  for- 
mer proceedings  \  though  not  strictly  speaking  costs 
of  the  defence.  But  where  the  inquest  is  taken  by 
default,  there  can  it  seems  be  no  suggestion  on  the 
roll  ^;  for  the  defendant  is  said  to  be  out  of  court, 

as 

'1  3  T.  R.  452.   1  East,  354.  Wils.  68.  Doug.  244.  and  see 

(a).  S.  C.  cited.  Append.  Chap.  XL.  §  1. 

e  2  H.  Blac.  352.  h  2  H.  Blac.  354. 

f  1  East,  352.  i  Id.  ibid. 

t  1  Str.  47.  50.  2  Str.  1 120.  J  2  Str.  1 120. 

1191.  Barnes,  353.  Say.  Rep.         ^  i   Str.  46.  but  sec  2  H. 

273.   Say.  Costs,  64.  S.  C.  2  BLic  351. 


878  OF  COSTS. 

as  to  all  purposes,  but  that  of  having  judgment 
against  him. 

By  the  21  Jac.  I.  c.  16.  it  is  enacted,  that  "  in  all 
*'  actions  upon  the  case  for  slanderous  words,  to  be 
*'  sued  or  prosecuted  in  any  of  the  courts  of  record 
*'  at  Westminster^  or  in  any  court  whatsoever  that 
*'  hath  power  to  hold  plea  of  the  same,  if  the  jury 
**  upon  the  trial  of  the  issue  in  such  action,  or  the  jury 
*'  that  shall  inquire  of  the  damages,  do  find  or  assess 
"  the  damages  under  forty  shillings,  then  the  plain- 
*'  tiff  or  plaintiffs  in  such  action  shall  have  and  reco- 
"  ver  only  so  much  costs  as  the  damages  so  given 
"  or  assessed  amount  unto,  without  any  further  in- 
*'  crease  of  the  same;  any  law,  statute  or  usage  to 
"  the  contrary  notwithstanding."  The  operation  of 
this  statute  is  confined  to  actions  for  slanderous  words 
spoken  of  the  person^  and  does  not  extend  to  actions 
for  slander  of  title  ',  &c.  wherein  the  special  damage 
is  the  gist  of  the  action:  neither,  for  the  same  reason, 
does  it  extend  to  an  action  for  special  damage,  in 
consequence  of  words  not  in  themselves  actionable  '" ; 
though,  where  the  words  are  actionable  in  them- 
selves, a  special  damage  will  not  take  the  case  out 
of  the  statute  ".  This   statute  applies   to  a  writ  of 

inquiry-, 

»  Cro.  Car.  141.  163.  1  Str.  "  2  Ld.  Raym.  1588.  2  Str. 

645.  936.  S.C.Willes,438.  Barnes, 

'n2Ld.  Rayni.831.  1  Salk.  132.  S.   C.   Id.  142.   3    Bur. 

206.  7  Mod.  129.  S.C.Willes,  1688.  2  Blac.  Rep.  1062.  Say. 

438.   Barnes,   132.   S.   C.  Id.  Costs,  25.  S.  C.  Cas.  Pr,  C. 

135.  2  H.  Blac.  531.  B.  137.  contra. 


I 


OF  COSTS.  879 

inquiry^  as  well  as  a  trial,  where  the  damages  are  un- 
der forty  shillings  °;  and  ^justification  found  for  the 
plaintiff  will  not,  in  that  event,  entitle  him  to  full 
costs  p.  In  actions  upon  judgments,  it  is  enacted  by 
the  statute  43  Geo.  III.  c.  46.  §  4.  that  "  the  plain- 
"  tiffs  shall  not  recover  or  be  entitled  to  any  costs  of 
"  suit,  unless  the  court  in  which  such  actions  shall  be 
"  brought,  or  some  judge  of  the  same  court,  shall 
"  otherwise  order." 

But  the  principal  statute,  made  for  restraining  the 
plaintiff's  right  to  costs,  is  the  22  &  23  Car.  II.  c.  9. 
(extended  to  Wales,  and  the  counties  palatine,  by  the 
11  &  12  ^.  III.  c.  9.);  by  which  it  is  enacted,  that 
"  in  all  actions  of  trespass,  assault  and  battery,  and 
*'  other  personal  actions,  wherein  the  judge,  at  the 
"  trial  of  the  cause,  shall  not  find  and  certify  under 
"  his  hand,  upon  the  back  of  the  record,  that  an  as- 
"  sault  and  battery  was  sufficiently  proved  by  the 
"  plaintiff  against  the  defendant,  or  that  the  freehold 
"  or  title  of  the  land  mentioned  in  the  plaintiff's  de- 
*'  claration  was  chiefly  in  question;  the  plaintiff,  in 
"  case  the  jury  shall  find  the  damages  to  be  under 
"  the  value  of  forty  shillings,  shall  not  recover  or  ob- 
*'  tain  more  costs  of  suit,  than  the  damages  so  found 
"  shall  amount  unto."  It  seems  to  have  been  the 
intention  of  this  statute,  that  the  plaintiff  should 
have  no  more  costs  than  damages,  in  any  personal 
action  whatsoever,  if  the  damages  were  under  forty 
shillings,  except  in  cases  of  batter}-,  or  freehold;  and 
not  even  in  these,  without  a  certificate :  And  this 
construction  was  adopted,  in  some  of  the   first  cases 

that 

«  2  Str.  934.  C.  P.  22.  2  Wils.  258 

p  Banies,  128.    Cas.  Pr. 


880 


OF   COSTS. 


that  arose  upon  tlie  statute  ''.  But  a  difterent  con- 
struction soon  prevailed ;  and  it  is  now  settled,  that 
the  statute  is  confined  to  actions  of  assault  and  bat- 
tery; and  actions  for  local  trespasses,  wherein  it  is 
possible  for  the  judge  to  certify,  that  the  freehold  or 
title  of  the  land  was  chiefly  in  question  ^.  Therefore 
it  does  not  extend  to  actions  of  assumpsit^  debt,  co- 
venant, trover  %  false  imprisonment,  or  the  like;  or 
to  actions  for  a  mere  assault  ^ ;  or  for  criminal  con- 
versation ",  or  battery  of  the  plaintiff's  servant  ^^  per 
quod  consortimn  "vel  servitium  ajnisit. 

In  actions  for  local  trespasses,  the  statute  applies, 
wherever  an  injury  is  done  to  tht  freehold  "",  or  to 
any  thing  grooving  ""  upon,  or  affixed  ■  to,  the  free- 
hold :  and  in  a  modern  case  %  it  was  carried  still 

further. 


q  2  Keb.  849.  3  Keb.  121. 
247. 

■•  T.  Raym.  487.  T.  Jon. 
232.  2  Show.  258.  S.  C.  3  Mod. 
39.  1  Salk.  208.  1  Str.  577. 
Gilb.  Eq.  Rep.  195.  Barnes, 
134.  3  Wils.  322.  S.  C.  1  H. 
Blac.  294.  2  East,  162.  Per 
Laivrence^  J. 

s  3  Keb.  31.  1  Salk.  208. 

t  3  T.  R.  391.  but  see  6  T. 
R.  562. 

1  3  Wils.  319. 

v3  Keb.  184.  1  Salk.  208.  1 
Str.  192. 

w  2  Vent.  48.  Com.  Rep. 
19.  I  Salk.   208.    1    Str.   577. 


633.  645.  Gilb.  Eq.  Rep.  195. 
2  Str.  726.  2  Ld.  Raym.  1444.. 
S.  C.  6  T.  R.  281. 

•''  HiU  V.  Reevesj  Bui.  M. 
Pri.  330.  Barnes,  144. 

y  Birch  V.  Daffey^  Bui.  M. 
Pri.  330.  1  Str.  633  .  Cas.  Pr. 
C.  B.  86.  Barnes,  121.  6T.R. 
281. 

2  Doug.  779.  and  see  1  Str. 
633.  645.  Gilb.  Eq.  Rep.  197, 
8.S.C.3Bur.  1282. Say.  Costs, 
50.  S.  C.  accord,  but  see  2 
Vent.  215.  Skin.  66.  Com. 
Rep.  19.  1  Salk.  208.  1  Str. 
192.  semb.  contra. 


OF  COSTS.  881 

further.  That  was  an  action  of  trespass  qiiare  clau- 
sum  f regit:  the  first  count  stated,  that  the  defen- 
dants broke  and  entered  the  close  of  the  plaintiffs, 
and  the  grass  of  the  plaintiffs  there  then  growing, 
with  their  feet  in  walking,  trod  down,  spoiled,  and 
consumed;  and  dug  up  and  got  divers  large  quan- 
tities of  turf,  peat,   sods,  heath,  stones,   soil   and 
earth  of  the  plaintiffs,   in  and  upon  the  place  in 
which,   is'c.   and  took  and  carried  away  the  same, 
and  converted  and  disposed  of  the  same  to  their  own 
use:   There   was    another    count,   upon  a  similar 
trespass,  in  another  close.  The  defendants  pleaded 
the  general  issue  to  the  whole  declaration,  and  two 
special  pleas  to  the  second  count:  And  on  the  trial, 
a  verdict  was  found  for  the  plaintiffs  on  the  gene- 
ral issue,  with  one  shilling  damages;  and  for  the 
defendants  on  the  special  pleas,  and  the  judge  had 
not  certified.  Per  Lord  Mansjield:  "  The  question 
'  on  this  record  is,  whether  the  plaintiffs  are  en- 
'  titled    to  any  more  costs  than  damages,  under 
'  the  statute  22  &  23  Car.  II.  c.  9.  ?  There  is  a 
'  puzzle  and  perplexity  in  the  cases  on  this  part 
'  of  the  statute,  and  a  jumble  in  the  reports;  and 

*  as  the  question  is  a  general  one,  we  thought  it 
'  proper  to  consult  all  the  judges;  and  they  are 
'  all  of  opinion,  that  this  case  is  within  the  sta- 

*  tute,  and  that  the  plaintiffs  ought  to  have  no 
'  more  costs  than  damages.  You  will  obser\'e, 
'  that  what  has   been  called  an  asportavit  in  this 

Vol.  II.  2  F  "  decla- 


882  OF  COSTS. 

"  declaration,  is  a  mode  or  qualification  of  the 
*'  injury  done  to  the  land:  The  trespass  is  laid  to 
"  have  been  committed  on  the  land,  by  digging, 
"  tfr.  and  the  asporta'uit  as  part  of  the  same  act; 
*'  and  on  the  trial  of  the  issue,  the  freehold  cer- 
"  tainly  might  have  come  in  question.  This  is 
*'  clearly  distinguishable  from  an  asportaiiit  of  per- 
"  sonal  property,  where  the  freehold  cannot  come 
*'  in  question,  and  which  therefore  is  not  within 
*'  the  act:  Thus,  after  trees  are  cut  down,  and 
"  thereby  severed  from  the  freehold,  if  a  trespasser 
"  comes  and  carries  them  away,  that  case  is  not 
*'  within  the  statute,  because  the  freehold  cannot 
"  come  in  question;  here  it  might."  In  an  ac- 
tion for  mesne-profits,  if  the  plaintiff  recover  less 
than  forty  shillings  damages,  and  the  judge  do 
not  certify  that  the  title  came  in  question,  the 
plaintiff  is  entitled  to  no  more  costs  than  damages  ^. 
Where  an  injury  is  done  to  a  personal  chattel, 
it  is  not  within  the  statute  ^ ;  nor  where  an  injury 
to  a  personal  chattel  is  laid  in  the  same  declara- 
tion with  an  assault  and  battery,  or  local  trespass " : 
and  consequently,  in  these  cases,  though  the  dam- 
ages be  under  forty  shillings,  the  plaintiff  is  en- 
titled 

^  1  Esp.  Cas.  .Vz.  Pn.  359.  1    Str.    192.' 551.    Gilb.    Eq. 

6  T.  R.  593.  Rep.     197.     S.    C.     Barnes, 

b  3    Keb.     389.     469.     T.  119,   20.    134.   3    Wils.   322. 

Jon.    232.     1    Salk.    208.    1  S.    C.    2    Str.     1130.     Saj. 

Str.    534.    Gilb.     Eq.    Rep.  Costs,  39.  but  see  1  Esp.  Cas. 

197.  S.C.  A7.  Pr/.  255. 

c  3  Mod.  39.  1  Salk.  208. 


1 


OF  COSTS.  883 

titled  to  full  casts,  without  a  certificate.  But  then 
it  must  be  a  substantive  and  independent  injury; 
for  where  it  is  laid  or  proved  merely  in  aggravation 
of  damages,  as  a  mode  or  qualification  of  the  as- 
sault and  battery,  or  local  trespass'^,  or  there  is  a 
verdict  for  the  defendant  upon  that  part  of  tlie 
declaration  which  charges  him  with  an  injury  to  a 
personal  chattel*,  it  is  within  the  statute.  So 
where  a  lacera'uit^  or  tearing  of  the  plaintiff's  clothes, 
is  laid  in  the  declaration,  or  found  by  the  juiy,  to 
be  merely  consequential  to  \  or  committed  at  the 
same  time  ^  as  an  assault  and  battery,  the  plaintiff, 
recovering  less  than  forty  shillings  damages,  is  not 
entitled  to  full  costs,  without  a  certificate. 

The  certificate  required  by  this  statute  need  not, 
it  seems,  be  granted  at  the  trial  of  the  cause  ^.  And 
where  the  defendant  lets  judgment  go  by  default ', 
or  justifies  the  assault  and  battery  \  or  pleads  in 
such  a  manner  as  to  bring  the  freehold  or  title  of 
the  land  in  question,  on  the  face  of  the  record,  or 
a  'oiew  is  granted  *",  a  certificate  is  holden  to  be  un- 
necessary. But  where,  in  an  action  for  an  assault 
and  battery,  the  defendant  justifies  tlie  assault  only ', 

or 

d  1  Str.  624.  Ante,  881,  2.  ^  W  Mod.    198.  Post.  887. 

«2    Vent.    180.    195.  Cas.  ">  Bui.  WI.  Pr/.  329. 

Pr.  C.  B.  118.  J  6  T.  R.  562. 

»Say.  Rep.  91.  IT.  R.  655.  k    i    Ld.    Raym.     76.     ?. 

B  1  H.  Blac.  291,  5  T.  R.  Salk.  665.  S.  C. 

482.  13T.  R.  391. 


884  OF  COSTS. 

or  an  assault  only  is  certified  by  the  judge '",  the 
plaintiff,  recovering  less  than  forty  shillings,  is  not 
entitled  to  more  costs  than  damages;  though,  in 
the  latter  case,  to  entitle  him  to  full  costs,  the 
judge  may  certify,  on  the  8  &.  9  PV.  III.  c.  11.  that 
the  assault  was  wilful  and  malicious  ".  The  award 
of  an  arbitrator  is  not  tantamount  to  a  judge's  cer- 
tificate, under  the  22  &  23  Car.  II.  c.  9  °. 

Where   the  plaintiif  recovered   less   than   forty 
shillings  damages,  and  the  plea  or  issue,  though 
special,  was  collateral  to  the  question  of  freehold 
or  title  to  the  land,  as  where  the  defendant  justi- 
fied an  entry  as  bailiff  under  process,  and  issue  was 
joined  upon  the  door's  being  shut  p,  or  where,  upon 
a  plea  of  a  distress  for  rent,  there  was  an  issue  on 
the  defendant's  being  bailiff  *^,  a  certificate  was  for- 
merly holden  to  be  necessary,  to  entitle  the  plain- 
tiff to   full   costs:    for   it  was   considered,   that  a 
plaintiff  who  recovered  less  than  forty  shillings  da- 
mages,  in  trespass  giiare  clausumf regit ^  was  not  en- 
titied  to  full  costs,  unless  the  freehold  or  title  ap- 
peared  to   have  come   in  question,   either  by  the 
judge's  certificate,  or  by  the  pleadings.    But  it  has 
since  been  determined,  in  several  cases  \  that  if  the 
defendant  in  trespass  quare  clausum  /regit,  plead  a 
licence,  or  other  justification,  which  does  not  make 

title 

="  2  Lev.  102.  q  Say.  Rep.  250. 

"  3  Wils.  326.  r  2   H.  Blac.  2.  341.  7  T. 

0  3  T.  R.  138.  R.  659. 

a  2  Barnard.  K.  B.  277 


OF  COSTS.  885 

title  to  the  land,  and  it  is  found  against  him,  the 
plaintiff  is  entitled  to  full  costs,  though  he  do  not 
recover  forty  shillings  damages:  The  principle  on 
which  these  determinations  have  proceeded  is,  that 
where  tlie  case  is  such,  that  the  judge  who  tries 
the  cause  cannot  in  any  view  of  it  grant  a  certifi- 
cate, it  is  considered  to  be  a  case  out  of  the  statute  *. 
So  on  a  plea  of  not  guilty  to  a  new  assignment  of 
extra  viam^  the  plaintiff  obtaining  a  verdict  for  less 
than  forty  shillings  damages,  is  entitled  to  full  costs, 
without  a  judge's  certificate  ';  unless  the  way  plead- 
ed be  set  forth  by  metes  and  bounds  ".  And  where 
the  plaintiff  is  entitled  to  costs  upon  the  new  assign- 
ment, he  is  entitled  to  the  costs  of  all  the  previous 
pleadings ' . 

None  of  the  statutes  made  for  restraining  the 
plaintiff's  right  to  costs,  except  the  21  Jac.  I.  c. 
16. '',    extend  to   actions    brought  in  an  inferior 

court, 

'  7  T.  R.  660.  holder),  that  courts-baron,  and 

^  2  Lev.  234.  2  Ld.  Raym.  other  inferior  courts,  wherein 

1444.  2  Str.  726.   S.   C.  Id.  the  jury   are  precluded  from 

1168.  Say.  Rep.   251.    Cock-  legally  assessing  damages  to 

erilly.  Allansoriy  T.  22  G.III.  the  amount  of  forty  shillings, 

K.  B.  Hul.  Costs,  86.  S.  C.  arc  not  within  the  meaning  or 

i  East,  350.  but  see  Barnes,  intent  of  this  statute,  but  that 

124.     129.    S.    C.    Id.    149.  such  courts  have  still  a  power 

Bui.  AT.  Pri.  330.  contra.  of  allowing  full  costs,  in  actions 

"  Cockerill   v.   Allanson,   T.  of  slander  prosecuted  therein, 

22  G.  III.  K.  B.  Hul.  Costs,  however  small  the  quantum  of 

86.  S.  C.  1  East,  351.  damages   found    or    assessed 

V  1  T.  R.  636.  may  be.   1  Ld.  Raym.  181. 

^'^^  Hul.  r>9.  And  it  hath  been 


886  OF  COSTS. 

court,  and  removed  by  the  defendant  into  a  supe- 
rior one  ^ :  And  it  has  been  holden,  that  the  latter 
statute  \  as  well  as  the  22  &  23  Car.  II.  c.  9.  % 
only  restrains  the  court  from  awarding  more  costs 
than  damages;  but  the  jury,  not  being  restrained 
thereby,  may  give  what  costs  they  please. 

The  restraint  put  upon  the  plaintiff's  general 
right  to  costs,  by  the  22  &  23  Car.  II.  c.  9.  has 
been  since  partly  taken  off,  by  subsequent  statutes. 
Thus,  by  the  statute  4  ^  5  IV.  &  ilf.  c.  23.  §  10. 
after  reciting,  that  great  mischiefs  ensue  by  infe- 
rior tradsemen,  apprentices,  and  other  dissolute 
persons,  neglecting  their  trades  and  employments, 
who  follow  hunting,  fishing,  and  other  game,  to 
the  ruin  of  themselves  and  damage  of  their  neigh- 
bours, it  is  enacted,  that  ''  if  any  such  person  shall 
*'  presume  to  hunt,  hawk,  fish,  or  fowl,  (unless  in 
"  company  with  the  master  of  such  apprentice,  duly 
"  qualified  by  law,)  such  person  shall  be  subject  to 
"  the  penalties  of  this  act,  and  shall  or  may  be 
"  sued  or  prosecuted  for  his  wilful  trespass,  in  such 
"  his  coming  on  any  person's  land;  and  if  found 
*'  guilty  thereof,  the  plaintiff  shall  not  only  reco- 
*'  ver  his  damages  thereby  sustained,  but  his  full 
"  costs  of  suit;  any  former  law  to  the  contrary 
"  notwithstanding."    It  has   been  holden,   that  a 

clot /iter 

X  2  Lev.  124.  4  Mod.  378,         y  i  Salk.  207. 
9.  1  Ld.  Raym.  39,5.  Cos.  Pr.        '  Cas.  Pr.  C  B.  45. 
t.  B.  45  («). 


OF  COSTS.  887 

clothier  is  an  inferior  tradesman,  within  the  mean- 
ing of  this  statute  ^ ;  and  it  is  said,  that  the  words 
*'  inferior  tradesmen''''  extend  to  every  tradesman 
who  is  not  qualified  to  kill  game^:  but  this  was 
doubted  in  a  subsequent  case  •",  wherein  the  judges 
were  divided  in  opinion  upon  the  question,  whe- 
ther a  surgeon  and  apothecary  should  be  considered 
as  an  inferior  tradesman. 

So  by  the  8  &  9  /T.  III.  c.  11.  §  4.  for  the  pre- 
venting of  wilful  and  malicious  trespasses,  it  is 
enacted,  that  "  in  all  actions  of  trespass,  to  be 
*'  commenced  or  prosecuted  in  any  of  his  majesty's 
*'  courts  of  record  at  Westminster^  wherein  at  the 
"  trial  of  the  cause  it  shall  appear,  and  be  certified 
*'  by  the  judge  under  his  hand,  upon  the  back  of 
"  the  record,  that  the  trespass,  upon  which  any 
"  defendant  shall  be  found  guilty,  was  luilfid  and 
*'  malicious,  the  plaintiff  shall  recover  not  only  his 
"  damages,  but  his  full  costs  of  suit;  any  former 
"  law  to  the  contrary  notwithstanding''."  The  cer- 
tificate required  by  this  statute,  need  not  be  grant- 
ed at  the  trial  of  the  cause '';  and  if  it  appear  on  the 
trial,  that  the  trespass,  hower  trifling,  was  com- 
mitted after  notice,  and  the  jury   give  less   than 

forty 

a  Barnes,  125.  and  see  1  Ld.  statute,  see  3  Wils.  325. 

Raym.    149.   Com.    Rep.   26.  ^  Sivinnerton  v.  Jarvis,  E.  22 

S.  C.  Geo.  III.  C.  B.    1  T.  R.  636. 

•'2  Wils.   70.   Say.  Costs,  6  T.  R.  1 1.  7  T.  R.  449.  K.  B. 

54.  S.  C.  but  see  2  Wils.  21.  Doug.  108, 

'^  For  the  exposition  of  this  n.  contra. 


888  Of  COSTS. 

forty  shillings  damages,  it  has  been  usual  for  t'nc 
judge  to  consider  himself  bound  to  certify,  that  the 
trespass  was  wilful  and  malicious,  in  order  to  entitle 
the  plaintiif  to  his  full  costs  ''.* 

Where  the  declaration  consists  of  several  counts, 
the  plaintiff  in  this  court  is  only  entitled  to  the 
costs  of  such  as  are  found  for  him  ^;  and  neither 
party  is  allowed  the  costs  of  those  which  are  found 
for  the  defendant  ^.  Where  the  plaintiff's  decla- 
ration consisted  of  two  counts,  to  one  of  which  the 
defendant  pleaded  the  general  issue,  which  was 
found  for  the  plaintiff,  and  to  the  other  a  justifi- 
cation, to  which  the  plaintiff  demurred,  and 
judgment  was  thereupon  given  for  the  defendant; 
the  court  agreed,  that  the  defendant  could  have 
no  costs  upon  the  demurrer ''.  But  if  there  be  two 
distinct  causes  of  action,  in  two  separate  counts, 
and  as  to  one  the  defendant  suffers  judgment  to  go 
by  default,  and  as  to  the  other  takes  issue,  and  ob- 
tains a  verdict,  he  is  entitled  to  judgment  for  his 
costs    on  the    latter    count,    notwithstanding   the 

plaintiff 

•  6  T.  R.  11.  and  see  7  T.  the  case  put  by  Z,e  J?/anc,  Just. 
R.  449.  8  T.  R.  467. 

f  But  it  is  otherwise  in  the  s  Say.   Costs,   212.  Doug. 

Common  Pleas;  for  there,  if  677.  6  T.  R.  602,  3.  2  Bos.  & 

the  plaintiff  succeed  upon  any  Pul.  50.  (6).  but  see  1  Wils. 

one  of  the  counts,  he  is  enti-  331. 

tied  to  the  costs  of  his  whole  ^  Say.  Costs,  211.2   Bur, 

declaration,    though  the   de-  1232.  S.  C.  but  differently  re- 

fendant    succeed     upon     the  ported.   Tamen  quare^  and  see 

others.    Bui.  M.  Pri.  335.   2  the  stat.  8  &  9  W.  III.  c.  11. 

Blac.Rep.  800.  1199.  6  T.  R.  §  2. 
602.  2  Bos.  &  Pul.  49.  but  see 

*  From  the  Addenda  to  the  London  edition.  "  The  granting  of  a  certi- 
ficate however,  upon  this  statute,  seems  to  be  discretionary  in  the 
judge  before  whom  the  trial  is  had,  who  may  certify  or  not,  accord- 
ing as  it  appears  to  him,  under  the  circumstances  proved,  that  the 
trespass  was  wilful  and  malicious:  And  the  judge  having  declined 
to  certify,  in  a  case  where  notice  was  given  by  the  plaintiff's  wife 
to  the  defendant  not  to  enter  the  locus  in  quo  in  his  cart,  there  being 
110  road  there,  notwithstanding  which  the  defendant  persisted  in  going 
on,  in  the  exercise  of  a  disputed  right  of  common  in  .an  adjoining  in- 


OF  COSTS.  889 

plaintiff  is  intitled  to  judgment  and  costs  on  the  first 
count '.  So  where  the  declaration  in  trespass  con- 
sisted of  one  count  only,  to  which  there  were  seve- 
ral pleas  of  justification  J  on  which  issues  were  taken, 
and  a  new  assignment  on  which  judgment  passed  by 
default,  and  a  venire  was  awarded,  as  well  to  assess 
the  damages  on  the  judgment  by  default,  as  to  try 
the  issues  ;  all  the 'issues  being  found  for  the  defen- 
dant, it  was  holden  that  he  was  intitled  to  the  costs 
of  them  J. 

An  inclosure-act  directed,  that  the  parties  who 
were  dissatisfied  with  the  determination  of  the  com- 
missioners, might  bring  actions  to  try  their  rights, 
adding  "that  if  the  verdict  should  be  in  favour  of 
*'  the  commissioners'  determination,  the  costs  should 
"  be  borne  by  the  plaintiff,  and  if  against  such  deter- 
"  mination,  then  by  the  proprietors  at  large:"  A 
proprietor  brought  an  action,  claiming  nine  distinct 
rights,  and  recovered  for  three  only ;  and  the  court 
held,  that  he  should  only  have  his  costs  on  those  is- 
sues which  were  found  for  him,  and  that  the  defen- 
dant should  have  his  costs  of  the  other  issues'". 


It  has   already    been   observed  \  that  no   costs 
were  recoverable  by  a  defendant  at  common  law: 

And 

is    T.   R.    654,  and  see  6     East,  350. 
T.R.  602,  3.  k  6  T-.  R.  599. 

i  8   T.   R.   466.  and  see    1         >  Ante,  864. 

Vol.  TT,  2G 


890  OF   COSTS^ 

And  the  reason  seems  to  be,  that  if  the  plaintiff 
failed  in  his  suit,  he  was  amerced  to  the  king  pro 
falso  clamore^  which  was  thought  to  be  a  sufficient 
punishment,  without  subjecting  him  to  the  pay- 
ment  of  costs.  The  first  instance  of  costs  being  gi- 
ven to  a  defendant,  was  in  a  writ  of  right  of  ward, 
by  the  statute  of  Marleberge,  (52  Heji.  III.)  c.  6^ 
Afterwards,  costs  Mere  given  to  the  defendant  in 
eiror,  by  the  3  Hen.  VII.  c.  10.  and  1?  I^en.  VII. 
c.  20.  and  in  replemn,  by  the  7  Hen.  VIII.  c.  4.  and 
21  Hen.  VIII.  c.  19,  &.c.  But  in  one  of  these  cases, 
die  defendant  is  to  be  considered  as  an  actor;  and  in 
the  other  of  them,  the  provision  is  virtually  for  the 
benefit  of  the  plaintiff  in  the  original  action  "\ 

In  raple'Din,  or  second  deliverance,  the  defendant, 
making  avowry,  cognizance,  or  justification,  for 
rents,  customs,  or  services,  or  for  damage  feasant, 
is  intitled  to  costs,  by  the  7  Hen.  VIII.  c.  4,  §  3. 
and  21  Hen.  VIII.  c.  19.  \  3.  if  the  avowry,  cog- 
nizance, or  justification  be  found  for  him,  or  the 
plaintiff  be  nonsuit,  or  otherwise  barred;  which 
statutes  extend  to  avowries,  &c.  made  by  an 
executor",  or  for  an  estray ",  and  as  it  should  seem, 
for  an  amercefuent  by  a  court-leef;  but  not  to 
pleas  of  prisel  en  auter  lieu.,  upon  which  the  ^vrit  is 
abated  '*,  or  to  pleas  of  property  in  the  thing  dis- 
trained. 

r 

m  Say.  Costs,  70.  Cro.  Eliz.  300.  semb.  contra. 

"2  Rol.  Rep.  457.  i  Com.    Rep.    122.2    Ld. 

o  Cro.  Eliz.  330.  Ruym.  788.  S.  C 

p  Cro.  Jac.    520.   but    see 


OF    COSTS.  891 

trained'.  By  the  17  Car.  II.  c.  r.  §  2.  the  defen- 
dant obtaining  judgment  thereon,  for  the  arrearages 
of  rent,  or  value  of  the  goods  distrained,  is  also  in- 
titled  to  his  y«// costs  of  suit  And  by  the  11  Geo. 
JI.  c.  19.  §  22.  if  the  defendant  avow,  or  make  cog- 
nisance in  replemn^  upon  a  distress  for  rent,  relief, 
heriot,  or  other  service,  and  the  plaintiff  be  nonsuit, 
discontinue  his  action,  or  have  judgment  against  him, 
the  defendant  shall  recover  double  costs  of  suit.  But 
this  latter  statute  does  not  extend  to  a  rent-charge  % 
or  seisure  for  a  heriot  custom  ^:  And  where  by  a  canal 
act,  the  company  were  authorised  to  take  certain 
lands  for  the  purposes  of  the  act,  on  making  certain 
payments,  either  by  annual  rents  or  sums  in  gross; 
and  the  persons  from  \\hom  the  land  was  to  be 
taken,  were  empowered  to  distrain  the  goods  of  the 
company,  ev^en  off  the  premises,  incase  of  non-pay- 
ment of  such  sums;  an  avowant,  stating  a  distress 
under  this  act  of  parliament,  was  holden  not  to  be 
intitled,  on  obtaining  a  verdict,  to  double  costs  un- 
der the  statute  of  11  Geo.  II.  c.  19.  §  22 ". 

By  the  statute  23  Hen.  VIII.  c.  15.  §  1.  it  was 
enacted,  that  *'  in  trespass  upon  the  statute  5  Rich. 
*'  II.  debt,  covenant,  detinue,  account,  trespass 
*'  on  the  case,  or  upon  any  statute  for  an  offence 
*'  or  wrong  personal,  immediatelj^  supposed  to  be 
"  done  to  the  plaintiff,   if   the  plaintiff,    after    the 

*'  appear- 

>•  Hardr.  153.  Say.  Costs,  107. 
"Willes,    429.     1    Bos.  8c        "  7    T.   R.  500.  and  see  I 

Pul.  214.  Bos.  &  Pul.213.  S.  P 
f  Barnes,  148.  2  Wils,  28, 


892  OF   COSTS. 

"  appearance  of  the  defendant,  be  nonsuited,  or  a 
"  verdict  pass  against  him,  the  defendant  shall  have 
*'  judgment  to  recover  his  costs  against  the  plaintiff, 
"  to  be  assessed  and  taxed  by  the  discretion  of  the 
''judge  or  judges  of  the  court  where  such  action 
"  shall  be  commenced  or  sued;  and  shall  have  such 
"  piocess  and  execution  for  the  recovery  of  the  same, 
"  against  the  plaintiff,  as  the  plaintiff  should  or  might 
"  have  had  against  the  defendant,  in  case  judgment 
^'  had  been  given  for   the  plaintiff." 

Execiims  and  administrators  ai'e  not  particularly 
excepted  out  of  the  statute  23  Hen.  VIII.  c.  15; 
yet  as  that  statute  only  relates  to  contracts  made 
with,  or  wrongs  done  to  the  plaintiff'',  it  has  been 
uniformly  holden  ",  that  they  are  not  liable  to  costs, 
upon  a  nonsuit  or  verdict,  where  they  necessarily 
sue  in  their  representative  character,  and  cannot 
bring  the  action  in  their  own  right;  as  upon  a  con- 
tract entered  into  with  the  testator  or    intestate '', 

or 
V  2  Str.  1 107.  executor  or  administrator,  ne- 

^■^  Cro.  Eliz.  503.  Cro.  Jac.  cessarily  suing  as  such,  upon 
229.  2  Bulst.  261.  1  Salk.  a  contract  entered  into  with 
207.  314.  3  Bur.  1586.  Say.  the  testator  or  intestate,  is 
Costs,  97.  not   made  liable   to   costs   by 

^  T.  Jon.  47.  1  Vent.  92.  the  statute,  and  no  costs  can 
2  Ld.  Raym.  1414.  1  Str.  be  awarded  against  him  on 
682.  S.  C.  Cas.  Pr.  C.  B.  record;  yet  in  a  late  case, 
157.  Pr.  Reg.  118.  S.  C.  where  the  plaintiff  sued  as  ad- 
Barnes,  141.  1  H.  Blac.  528.  ministrator,  upon  a  contract 
1  Bo  .  £c  Pul.  445.  2  Bos.  Sc  made  with  his  intestate,  and 
Pul.  253.  2  Eastj  395.  Cookand  assigned  by  the  plaintiff  to  J. 
others^  Executors,  v.  Lucas,  E.  S.  for  whose  benefit  the  ac- 
42  G.  III.  But  though  an  tion  was  brought,  and  it  ap- 
peared 


III 


OF   COSTS. 


8% 


or  lor  a  wrong  done  in  his  life-time  ^.  But  where 
the.  cause  of  action  arises  after  the  death  of  the  tes- 
tator or  intestate,  and  the  plaintiff  may  sue  thereon 
in  his  own  right,  he  shall  not  be  excused  from  the 
payment  of  costs,  though  he  bring  the  action  as 
executor  or  administrator;  as  upon  a  contract  %  ex- 
press or  implied,  or  in  trover  ^,  for  a  conversion  af- 
ter the  death  of  the  testator  or  intestate :  And  exe- 
cutors or  administrators  are  not  necessarily  ex- 
empted from  costs,  on  interlocutory  motions  ''.  An 
executor  or  administrator  is  liable  to  costs,  upon  a 
judgment  of  non-pros  "■ :  And  where  he  has  know- 
ingly  brought  a  wrong  action,  or  otherwise  been 
guilty  of  a  ivilfid  default,  he  shall  pay  costs  upon  a 
discontinuance  ^,  or  for  not  proceeding  to  trial  ac- 
cording to  notice  " ;  but  otherwise  he   is  not  liable 

to 


peared  in  evidence  that  the 
contract  had  been  annulled, 
with  the  privity  both  of  the 
plaintiff  and  J.  S.  and  that  the 
former  was  indemnified  by 
the  latter;  a  verdict  being 
found  for  the  defendant,  the 
court  of  common  pleas  made 
a  rule  upon  the  plaintiff,  to 
pay  the  defendant  his  costs, 
as  for  a  contempt,  in  fraudu- 
lently abusing  the  process  of 
the  court.  3  Bos.  8c  Pul.  115. 

y  Barnes,  129. 

»6  Mod.  91.  181.  1  Salk. 
207.  S.  C.  1  Ld.  Raym. 
436.  1  Str.  682.  Barnes,  119. 


2  Str.    1106.     4    T.  R.  277. 
5  T.  R.  234.  2  East,  396. 

•^  Com.  Rep.  162.  Cas.  Pr. 
C.  B.  61.  Barnes,  132.  Cas. 
tcwfi.  Hardw.  204.  7  T.  R. 
358.  Monkland  v.  De  Grainge, 
M.  41  G.  III.  but  see  3  Lev. 
60.  semb.  contra. 

b  Ptr     Cur.    M.  42  G.  III. 

'^  Cas.  Pr.  C.  B.  14.    157,8. 

3  Bur.  1585.  6  T.  R.  654. 

'I  Cas.  Pr.  C.  B.  79.  3  Bur. 
1451.  1  Blac.  Rep.  451.  S. 
C.  Arde,  628. 

e  Cas.  Pr.  C.B.  158.  3  Bur 
1585.  1  H.  Blac.  217, 


894  oy  COSTS. 

to  costs,  in  either  of  these  cases  ^  Nor,  where  he 
merely  sues  en  aiiter  droit,  is  he  liable  to  costs,  upon 
a  judgment  as  in  case  of  a  nonsuit  ^. 

Executors  and  administrators  are  liable  to  costs, 
when  defendants,  if  they  plead  falsely'^';  and  the 
judgment  in  such  case  is,  that  the  costs  be  levied,  of 
the  goods  of  the  testator  or  intestate,  if  the  defen- 
dant hath  so  much  thereof  in  his  hands  to  be  ad- 
ministered, and  if  not,  de  bonis  propriis  \  A  bank- 
rupt sued  as  executor,  pleaded  a  false  plea,  and 
it  being  found  against  him,  the  plaintiff' had  judg- 
ment for  the  costs  de  bonis  propriis,  after  which  he 
had  obtained  his  certificate;  and  the  court  held, 
that  this  judgment  for  the  costs  was  not  discharged 
by  the  certificate ''.  But  where  an  executor  or  ad- 
ministrator pleads  plene  administra'vit,  and  the  plain- 
tiff, admitting  the  truth  of  the  plea,  takes  judg- 
ment of  assets  in  futiiro,  the  defendant  is  not  lia- 
ble to  costs '.  So  where  an  executor  or  adminis- 
trator pleads  several  pleas  to  the   whole  declaration, 

as 

f2Str.    871.   Barnes,    133.  termined    in    the     Common 

4  Bur.  1927.  Say.  Costs,   96,  Pleas:  and  it    seems  that  th6 

7.  S.  C.  defendant  is  not  liable  to  costs, 

8  4   Bur.    1928.    Per     Cur.  where  he  pleads /i/e-wc arfTwznz-s- 

T.  37  Geo.  III.    Barnes,  130.  travH  firxter,  and  the  plain- 

2  H.  Blac.  277.  2  East,   396.  tiff,  admitting  the  truth  of  the 

>i  Plowd.    183,  Hut.  69.79.  plea,    takes  judgment  of  the 

■'  4  T.  R.  648.  7  T.  Pv.  359.  assets   admitted  in   part,  and 

k  3  Bur.  1368.  1  Blac.  Rep.  for  the  residue,  of  assets  my«- 

400.  S.  C.  ^w/p,  182.  iuro.  See    Rast.   Ent.  323.    8 

>  Imp;    K.  B.  428.   where  Co.  134.  2   Saund.   226.  Sid. 

it  is  said  to  have  been  so  de-  448.  S.  C. 


OF  COSTS.  895 

.i}i  noil  assumpsit  and  pkne  administra'uk,  and  one  of 
them  is  found  for  him,  he  is  intitled  to  the  postea 
and  costs,  though  the  other  plea  be  found  against 
him.  But  if  the  plaintiff  take  judgment  of  assets 
infutiiro,  upon  the  plea  oi plene  adinmistramt,  and 
go  to  trial  upon  the  plea  of  non  assumpsit ^  he  will 
be  intitled  to  costs,  if  he  obtain  a  verdict;  and  there- 
fore in  such  case,  unless  the  defendant  has  a  good 
ground  of  defence  upon  jion  assumpsit^  it  is  usual  for 
him  to  move  to  withdraw  his  plea,  which  the  court 
will  permit  him  to  do,  upon  payment  of  costs  ™. 

There  being  still  many  cases,  in  which  the  de- 
fendant was  not  aided  by  the  provisions  of  the  be- 
fore-mentioned statutes  ",  it  was  enacted  by  the  sta- 
tute 4  Jac.  I.  c.  3.  that  "  if  any  person  shall  com- 
"  mence  in  any  court,  any  action  of  trespass, 
"  ejectione  fir  may  or  any  other  action  whatsoever, 
*'  wherein  the  plaintiff  or  demandant  might  have 
"  costs,  in  case  judgment  should  be  given  for  him, 
"  and  the  plaintiff  or  demandant  shall  be  non- 
*'  suited  therein,  after  the  appearance  of  the  de- 
*'  fendant,  or  a  verdict  shall  pass  against  him  by^ 
"  lawful  trial,  that  then  the  defendant,  in  every 
"  such  action,  shall  have  judgment  to  recover  his 
"  costs  against  the  plaintiff  or  demandant,  to  be 
"  assessed  and  levied  in  like  manner  as  upon  the 
"  23  Hen.  VIII.  c.  15."  By  the  above  statute, 
the  defendant   is   intitled  to   costs,  on  a  nonsuit  or 

verdict. 

n»  2  Blac.  Rep.  1275.  Bui.  AY.  Prl.  .'3.^i. 

"  2  Leon.  9.  3  Leon.  92. 


896.  OF  COSTS. 

verdict,  in  all  cases  where  the  plaintiff  would  have 
been  entitled  to  them,  if  he  had  obtained  judgment; 
as  in  assumpsit ",  &:c.  And  though  the  declaration 
be  insufficient,  so  that  the  plaintiff  could  not  have 
had  costs  thereon,  the  defendant  is  nevertheless  in- 
titled  to  costs,  for  the  unjust  vexation  p.  But  this 
statute,  being  framed  upon  the  model  of  the  23  Hen. 
Vill.  c.  15.  does  not  extend,  any  more  than  that, 
to  actions  brought  by  executors  or  administrators  '^. 

The  statutes  which  have  been  hitherto  mentioned, 
as  giving  costs  to  defendants,  only  relate  to  cases 
where  the  plaintiff  is  nonsuited,  or  has  a  verdict 
against  him.  But  there  are  other  statutes,  by  which 
the  defendant  is  intitled  to  costs  upon  a  nolle  prose- 
qui^ ?ion-pros^  discontinuance,  or  demurrer;  or  where 
the  plaintiff  does  not  recover  the  amount  of  the  sum 
for  which  the  defendant  was  arrested,  provided  it  ap- 
pear that  he  had  not  any  reasonable  or  probable  cause 
for  arresting  him  to  that  amount,  and  the  court  shall 
thereupon  make  a  rule  or  order  for  the  allowance  of 
such  costs. 

By  the  8  Eliz.  c.  2.  "  upon  process  issuing  out 
"  of  the  court  of  King's  Bench,  if  the  plaintiff  do 
*'  not  declare  in  three  days  after  bail  put  in,  or 
"  if  after  declaration,  he  do  not  prosecute  his  suit 
"  with  effect,  but  willingly  suffer  the  same  to  be 
*■'  delayed  or  discontinued,  or  he  be  nonsuited 
"  therein,  the  judges,  by  their  discretions,  shall 
"  award  to  the  defendant  his  costs,  damages  and 
"  charges  in  that  behalf  sustained."  If  the  plaintiff 
enter  a  7iolle  prosequi^  the  defendant  is  intitled  to 
costs  upon  this  statute  \  But  it  does  not  extend, 

an}' 


'  Ante,  865.  but  see  Cro.  Jac.  158,  9.  semh 

I'Moor,  625.  1  Bulst.    189.  contra. 
.1    Bulst.    248.     Hob.     219.        q  Gilb.  C.  P.  271. 
Hut.  16.  S.  C.  Cro.  Car.  17. v         ••  .t  t.  R.  511. 


OF  COSTS.  897 

any  more  than  the  former,  to  actions  brought  by  exe- 
cutors and  administrators '  in  their  representative  cha- 
racter. 

By  the  13  Car.  II.  stat.  2.  c.  2.  ^  3.  it  is  enacted, 
that  "  upon  an  appearance  entered  for  the  defen- 
*'  dant  by  attorney,  of  the  term  wherein  the  pro- 
*'  cess  is  returnable,  unless  the  plaintiff  shall  put 
"  into  the  court  from  whence  the  process  issued, 
"  his  bill  or  declaration  against  the  defendant,  in 
"  some  personal  action  or  ejectment  of  farm,  be- 
*'  fore  the  end  of  the  term  next  following  after 
"  appearance,  a  nonsuit  for  want  of  a  declaration 
*'  may  be  entered  against  him;  and  the  defendant 
"  shall  have  judgment  to  recover  costs  against  the 
"  plaintiff,  to  be  taxed  and  levied  in  like  manner  as 
"  upon  the  23  Hen,  VIII.  c.  15." 

And  still  further  to  discourage  the  bringing  of 
frivolous  and  A'cxatious  actions,  it  is  enacted,  by 
the  statute  8  &  9  /T.  III.  c.  11.  §  2.  tha!  "  if  any 
*'  person  shall  commence  or  prosecute  any  action, 
*'  in  any  court  of  record,  wherein  upon  demurrer, 
"  eitlier  by  plaintiff  or  defendant,  demandant  or 
"  tenant,  judgment  shall  be  given  by  the  court 
"  against  the  plaintiff  or  demandant,  the  defendant 
"  or  tenant  shall  have  judgment  to  recover  his  costs, 
*•  and  have  execution  for  the  same  by  capias  ad  sa- 
"  tisfaciendum,  fieri  facias^  or  elegit.'^''  This  statute 

does 

s  Cro.  Eliz.  69.  Cro.  Jac.  361. 
Vol.  IT.  2  H 


898 


Oi-   COSTS. 


does  not  extend  to  demurrers  to  pleas  in  abatement  "^ ; 
nor  any  action,  wherein  the  defendant  would  not  have 
been  entitled  to  costs,  upon  a  nonsuit  or  verdict ''.  * 
The  plaintiff,  we  may  remember,  is  not  entitled  to 
costs  in  a  popular  action,  for  the  whole  or  part  of  the 
penalty  given  by  statute  to  a  common  informer, 
unless  they  are  expressly  given  him  by  the  statute  ^'. 
Nor  was  the  defendant  entitled  to  costs  in  such  an 
action,  until  the  statute  18  Eliz.  c.  5.  ^  3.  (made 
perpetual  by  the  27  E/iz.  c.  10.)  by  which  it  is  en- 
acted, that  "  if  any  common  informer  shall  willingly 
*'  delay  his  suit,  or  shall  discontinue,  or  be  nonsuit, 
*'  or  shall  have  the  matter  pass  against  him  therein 
•'  b}^  verdict  or  judgment  in  law,  the  said  informer 
•'  shall  pay  to  the  defendant  his  costs,  charges,  and 
"'  damages,  to  be  assigned  by  the  court  in  which  the 
''  suit  shall  be  attempted:"  With  a  proviso,  that 
''  this  act  shall  not  extend  to  any  officer,  who  in  re- 
'•  spect  of  his  office,  has  heretofore  usually  sued 
"  upon  penal  laws;  nor  to  any  officer,  suing  only 
''  for  matters  concerning  his  office"''."    This  act  of 

parliament, 

M.  Pri.  324.  and  see  the  sta- 
tute 24  Hen.  VIII.  c.  8.  which 
exempts  plamtiffs,  suing  to 
the  use  ot  the  king,  in  any 
action  whatsoever,  from  the 
payment  of  costs,  in  case  they 
be  nonsuited,  or  a  verdict  pass 
against  them.  See  also  7  T. 
R.  367. 


=  1  Ld.  Raym.  337.  1  Salk. 
194.  12  Mod.  195.  Comb. 
482.  S.  C.  2  Ld.  Raym.  992. 
1  Salk.  194.  6  Mod.  88.  S.  C. 

"Cas.  Pr.  C.  B.  25.  1  H. 
Blac.  530.  but  see  Cas.  Pr.  C. 
B.  4.  contra. 

V  Ante,  866. 

■^' 2  Ld.  Raym.  1333.  Bui. 


•  From  tr.c  Addenda  to  the  London  Edition.  "  And  for  the  more  ef- 
fectual prevention  of  frivolous  and  vexatious  arrests  and  suits,  it  is 
enacted  by  the  statute  43  Geo.  III.  c.  46.  $  3.  that "  in  all  actions  to  be 
'*  brought  in  Eni^land  or  Ireland,  wherein  the  defendant  or  defendants 
"  shall  be  arrested  and  held  to  special  bail,  and  wherein  the  plaintiff 
''  or  plaintiffs  shall  not  recover  the  amount  of  the  sum  for  which  the 
"  defendant  or  defendants  in  sucli  actions  shall  have  been  so  arrested 
"  and  held  to  special  bail,  such  defendant  or  defendants  shall  be  entit- 
"■  led  to  costs  of  suit,  to  be  taxed  according  to  the   custom  of  the 

"  court 


OF  COSTS.  899 

parliament,  which  seems  to  give  costs  upon  arrest 
of  judgment  ""j  extends  to  actions  brought  upon  a 
subsequent  statute  ^,  or  one  that  is  repealed  ' ;  and  al- 
so to  actions  qui  tarn,  for  part  of  a  penalty,  as  well  as 
where  the  whole  is  given  to  a  common  informer  ^ : 
But  it  does  not  extend  to  actions,  brought  by  the 
party  grieved,  upon  a  remedial  statute  ^. 

Where  there  are  several  defendants,  who  succeed 
in  the  action,  the  plaintiff  may  pay  costs  to  which  of 
them  he  pleases  ":  And  if  they  fail,  each  of  them  is 
answerable  for  the  whole  costs.  Thus,  where  an 
ejectment  was  brought  against  several  defendants, 
who  defended  severally,  and  at  the  assizes  one  of 
them  confessed  lease,  entry  and  ouster,  and  had  a 
verdict  against  him,  but  the  others  did  not  confess; 
the  court  upon  application  said,  the  officer  must  tax 
the  same  costs  against  all  the  defendants ;  and  that  if 
the  plaintiff,  after  he  had  satisfaction  against  one, 
should  take  out  execution  against  another,  the  latter 
might  apply  to  the  court  ^. 

Where  one  of  several  defendants  lets  judgment 
go  by  default,  and  the  other  pleads  a  plea  which 
goes  to  the  whole  declaration,  and  shews  that  the 

plaintiff 

^  Gilb.  C.  P.  271.  but  see  Vin.  Abr.  341,  2.  S.  C. 

Hul.  Costs,  203.  b  1  And.  116.  2  Leon.  116. 

y  Willes,  392.  440.  1  Wils.  4  Leon.   55.  Cro.   Eliz.  177. 

177.  Hut.  22.  1  Salk.  30. 

z  Hut.   35,   6.    2  Keb.    106.  c  i  Str.  516.2  Str.  1203. 

^  Cowp.  366.  Say.  Costs,  75.  '^  Bui.  Mi.  Pri.  335,  6. 
S.  C.  and  see   2  Str.    1103.  6 

"  court  in  which  such  action  shall  have  been  bioupfht;  provided  that 
"  it  shall  be  made  appe:u',  to  the  satisfaction  of  the  court  in  which 
"  such  action  is  broup^'ht,  upon  motion  to  be  made  in  court  for  that 
"  purpose,  and  upon  hearin,^  the  parlies  by  affidavit,  tliat  the  plaintiff' 
"  or  plaintiffs  in  such  action  had  not  any  reasonable  or  probable  cause 
•' for  causing  the  defendant  or  defendants  to  be  arrested  and  held  to 
"  special  bail  in  such  amount  as  aforesaid,  and  provided  such  court  shall 
"  thereupon,  by  a  rule  or  order  of  the  same  court,  direct  that  such 
"  costs  shall  be  allowed  to  ihe  defendant  o'*  "defendants:  And  the 

"  plaintiff" 


900  OF   COSTS. 

plaintiff  had  no  cause  of  action,  if  this  plea  be  found 
for  the  defendant  who  pleaded  it,  he  shall  have  costs ; 
and  being  an  absolute  bar,  the  other  defendant  shall 
have  the  benefit  of  it,  and  shall  not  pay  costs  to  the 
plaintiff  ^  But  where  the  plea  does  not  go  to  the 
whole,  but  is  merely  in  discharge  of  the  party  plead- 
ing it,  there  the  other  party  shall  not  have  the  bene- 
fit of  it;  but  shall  pay  costs,  though  it  be  found 
against  the  plaintiff'. 

Before  the  statute  ShOlf.  III.  c.  11.  if  one  of 
several  defendants  had  been  acquitted^  he  was  not 
entitled  to  his  costs;  the  courts  construing  the 
former  acts  to  relate  only  to  the  case  of  a  total  ac- 
quittal, of  all  the  defendants  s.  This  being  found 
inconvenient,  it  was  enacted  by  the  same  statute, 
§  1.  that  "  where  several  persons  shall  be  made 
"  defendants,  to  any  action  of  trespass,  assault, 
"false  imprisonment,  or  c'jectione  firvia^  and  any 
"  one  or  more  of  them  shall  be,  upon  the  trial 
"  thereof,  acquitted  by  verdict,  every  person  so 
"  acquitted  shall  recover  his  costs  of  suit,  in  like 
"  manner  as  if  the  verdict  had  been  given  against 
*'  the  plaintiff,  and  acquitted  all  the  defendants; 
'*  unless   the  judge,    before   whom   the    cause   is 

"  tried, 

e  Co.  Lit.     125.   Cro.    Jac.  Keg.  102.S.  C. 

134.  1   Lev.  63.   1    Sid.  76.    1  ^  Id.  ibid.    1  Wils.  89.  3  T. 

Keb.  284.  S.  C.  2  Ld.  Raym.  R.  656. 

1372.  1  Str.  610.  8  Mod.  217.  K  2  Str.  1005.  and  seel  Salk. 

S.  C.  Cas.  Pr.  C.  B.  107.  Pr.  194. 

"  plaintiff  or  plaintiffs  sliall,  upcm  such  rule  or  order  beintj  made  as 
■'  aforesaid,  be  disabled  from  takinc"  out  any  execution  for  Die  sum 
"  recovered  in  any  sucli  action,  unless  the  same  shall  exceed,  and 
"  then  in  such  sum  only  as  the  same  shall  exceed,  the  amoimt  of  the 
"  taxed  costs  of  the  defendant  or  defendants  in  sucli  action;  and  in 
"  case  the  simi  recovered  in  any  such  action  shall  be  less  than  the 
"  amount  of  the  costs  of  the  defendant  or  defendants  to  he  taxed  as 
"  aforesaid,  that  then  the  defendant  or  defendants  shall  be  entitled, 
"  after  deducting  tlie  sum  of  money  recovered  bv  the  plaintiff  or  plain- 

"  tiffsi 


OF  COSTS.  901 

"  tried,  shall  immediately  after  the  trial  thereof,  in 
"  open  court,  certify  upon  the  record  under  his  hand, 
"  that  there  was  a  reasonable  cause  for  making  such 
*'  person  a  defendant."  This  statute  is  confined  to  the 
particular  actions  therein  mentioned;  and  does  not 
extend  to  an  action  of  trespass  upon  the  case '',  nor 
consequently  to  an  action  of  trover  ':  neither  does  it 
extend  to  an  action  of  rcplemn '',  or  to  an  action  of 
debt  on  bond  against  executors,  one  of  whom  was 
acquitted  on  the  plea  of  plerie  admimstramt  prater '. 
When  a  feigned  issue  is  ordered  by  a  court  of 
/aiu,  whether  it  be  in  a  civil  or  criminal  proceed- 
ing, the  costs  always  follow  the  verdict,  and  must 
be  paid  to  the  party  obtaining  it "".  But  when  a 
feigned  issue  is  ordered  by  a  court  of  equity^  the 
costs  do  not  follow  the  verdict,  as  a  matter  of 
course;  but  the  finding  of  the  jury  is  returned  back 
to  the  court  which  ordered  the  issue,  and  the  costs 
there  arc  in  the  discretion  of  the  court "".    Where 

the 

''  2  Str.  1005.  69.  204.  But  in   the   case   of 

'  Barnes,  139.  Hoskins  v.  Ld.  Berkeley,  (4  T. 

k  3  Bur.  1284.  1  Blac.  Rep.  R.    402.)  tlie    court  strongly 

355.  Say.  Costs,  215.  S.  C.  intimated  an  opinion,  that  as 

'  Duke  ofJVorfolk  v.  Anthony  feigned  issues  were  only  grant- 

and  another,  E.  42  G.  III.  ed  with  the  leave  of  the  court, 

'"  Still  and  Rogers,  1  Lil.  P.  it  would  be  prudent  in  future, 

R.  344. Per //o//r,Ch.  J.  Barnes,  when  they  permitted  such  is- 

130.  1    Wils.   261.   331.  Say.  sues  to  be  tried,  to  compel  the 

Rep.   24.    1  Wils.  324.  S.  C.  parties  to    consent,    that   the 

and  see  Biu't.  Prac.  Excheq.  costs  should  be  in  the  discre- 

248,9.  Peake,   Cas.  M.  Pri.  tion  of  the  court. 

"  tiffs  in  such  nction,  from  the  amount  of  liis  or  their  costs  so  to  be 
"  taxed  as  aforesaid,  to  t.ike  out  execution  for  such  costs,  in  like  nian- 
"  ner  as  a  defendant  or  defendants  may  now  by  law  bavc  execution  for 
"  costs  in  other  cases." 


-90f^  OF    COSTS. 

the  issue  is  ordered  by  a  court  of  law,  on  a  rule  for 
an  information  ",  or  motion  for  an  attachment ",  the 
costs  of  the  original  rule  or  motion  do  not  in  gene^- 
ral  follow  the  verdict,  but  only  the  costs  of  the  feign- 
ed issue;  which  costs  are  to  be  reckoned  from  the 
time  when  the  feigned  issue  Mas  first  ordered  and 
agreed  to  ''.  Yet,  m  here  it  was  ordered  by  the  con- 
sent-rule, that  the  costs  should  abide  the  event  of  the 
issue,  the  court  directed  the  "iXihole  costs  to  be  paid 
under  it  ''. 


Having  thus  shewn,  in  what  cases  the  parties  are 
entided  to  costs,  I  shall  proceed  to  consider,  what 
costs  they  are  respectively  entitled  to,  with  the  means 
of  taxing  and  recovering  them,  as  between  jf)<3;r{y  and 
party. 

Where  the  plaintiff'  recovers  single  damages,  he 
is  only  entitled  to  single  costs,  unless  more  be  ex- 
pressly given  him  by  statute:  But  if  double  or  tre- 
ble damages  are  given  by  a  statute,  subsequent  to 
the  statute  of  Gloucester,  in  a  case  wherein  single 
damages  were  before  recoverable,  the  plaintiff  is 
entitled  to  double  or  treble  costs,  although  the  sta- 
tute be  silent  respecting  them "" ;  as  in  an  action 
upon  the  2  Hen.  IV.  c.  11,  &c '.  In  some  cases, 

double 

"  Say.  Rep.  229.  1  Bur.  603.  'i  2  Bur.  1021. 

Say.  Costs,  144.  S.  C  '  «■  Say.  Costs,  22S. 

o  Suy.  Rep.  253.  '  Jnic,  865 
"  1  Bur.  604. 


or  COSTS.  903 

double  and  treble  costs  are  expressly  given  to  the 
plaintiff;  as  upon  the   game-laws,    by   the   statute 

2  Geo.  III.  c.  19.  \  5.  And  wherever  a  plaintiff  is 
entitled  to  double  or  treble  costs,  the  costs  given  by 
the  court  de  incremento  are  to  be  doubled  or  trebled, 
as  well  as  diose  given  by  the  jury  '.  But  double  or 
treble  costs  are  not  to  be  understood  to  mean,  accord- 
ing to  their  literal  import,  twice  or  thrice  the  amount 
of  single  costs.  Where  a  statute  gives  double  costs, 
they  are  calculated  thus:  1.  the  common  costs;  and 
then  halftht  common  costs:  If  treble  costs,  1.  the 
common  costs;  2.  half  of  these;  and  then  half  of  the 
latter  ". 

Double  or  treble  costs  are  also  in  some  cases  ex- 
pressly given  to  the  defendant;  as  in  actions  against 
justices  of  the  peace,  constables,  &c.  by  the  7 
Jac.  1.  c.  5.  ''  (made  perpetual  by  the  21  Jac,  I. 
c.  12.  \  2.);  for  distresses  for  rents  and  services, 
by  the  11  Geo.  II.  c.  19.  \  21,  2.;  and  against 
officers  of  the  excise  or  customs,  by  the  23  Geo.  III. 
c.  70.  \  34.  and  24  Geo.  III.  sess.  2.  c.  47.  \  'iS. 
In  these  and  similar  cases,  where  it  does  not  ap- 
pear, on  the  face  of  the  record,  that  the  defen- 
dant is  entided  to  the  benefit  of  the  act,  (as  where 

he 

'2  Leon.  52.Cro.  Eliz.  582.  v-  This  statute  does  not  ex- 

3  Lev.  351.  Garth.  297.  321.  tend  to  actions  for  a  merejio//- 
1  Salk.  205.  1  Ld.  Raym.  19,  /caswncf,  but  only  where  sonie- 
S.  C.  2  Str.  1048.  but  see  1  thing  is  done  by  the  officers. 
T.  R.  252.  2  Lev.  250.  3  East,,92. 

"  Table  of  Costs,  in  firincip. 


904  OF   COSTS. 

he  pleads  the  general  issue,)  and  riiere  is  no  parti- 
cular mode  appointed  for  recovery  of  the  costs, 
the  proper  mode,  after  a  nonsuit  or  verdict  for  the 
defendant,  is  to  apply  to  the  court,  upon  an  affida- 
vit of  the  facts,  for  leave  to  enter  a  suggestion  on 
the  roll  ^''.  And  it  cannot  be  done  by  rule  of  court '', 
unless  where  the  plaintiff  moves  for  leave  to  discon- 
tinue, on  payment  of  costs;  in  which  case,  the  court 
may  make  it  part  of  the  rule,  that  he  shall  pay  dou- 
ble or  treble  costs  ^.  But  where  a  particular  mode  is 
appointed  by  statute,  for  the  recovery  of  double  or 
treble  costs,  as  by  the  certificate  of  the  judge  who 
tried  the  cause,  on  the  7  Jac.  I.  c.  5.  there  that  parti- 
cular mode  must  be  observed  "^ :  so  that  if  the  judge 
certify,  there  is  no  need  of  a  suggestion ;  and  if  he 
do  not,  it  is  of  no  avail,  except  where  judgment  goes 
by  default  ^. 

Costs  are  taxed  by  the  master,  upon  a  bill  made 
out  by  the  attorney  for  the  prevailing  party;  or 
more  frequently  without  a  bill,  upon  a  view  of  the 
proceedings;  and  if  there  have  been  any  extra  ex- 
pences,  which  do  not  appear  on  the  face  of  the 
proceedings,  there  should  be  an  affidavit  made  of 
such  expences,  to  warrant  the  allowance  of  them; 

which 

"'  1    Str.  49,   50.   Cas.    Pr.  y  2    Str.    974.   Cas.    Temti. 

C.  B.  16.  Cas.  Temfi,  Hardw.  Hardw.  125. 

126.  Id.   138.   2  Str.  1021.  S.  ^  2  Vent.  45.  Doug.  307,  8. 

C.   Say.    Rep.  214.  3    Wils.  7  T.  R.  448.  but  see  Doug. 

442.  308.  n. 

X  1  Str.  50.  '»Cas.  TVwz/K  Hardw.  138,  P 


OF  COSTS.  905 

which  is  called  an  affidavit  of  increased  costs ''.  It  is 
usual  to  give  notice  to  the  opposite  attorney,  of  the 
time  when  the  costs  are  intended  to  be  taxed;  but 
in  order  to  enforce  it,  there  must  be  a  rule  to  be  pre- 
sent at  taxing  costs  ":  which  rule  is  obtained  from 
the  clerk  of  the  rules,  and  a  copy  of  it  should  be 
duly  served ;  after  which,  if  the  costs  are  taxed  with- 
out notice,  the  taxation  is  irregular,  and  the  attorney 
liable  to  an  attachment. 

The  means  of  recovering  costs,  as  between  party 
and  party,  are  by  execution  or  action,  upon  a  judg- 
ment obtained  for  them;  or  by  attachment,  upon  a 
rule  of  court  '^  Thus  in  ejectment,  where  there  is  a 
verdict  and  judgment  against  the  tenant,  execution 
may  be  taken  out,  or  an  action  brought  thereon,  for 
the  costs  ^:  but  where  the  plaintiff  is  nonsuited,  for 
the  defendant's  not  confessing  lease  entry  and  ouster, 
the  lessor  of  the  plaintiff  must  proceed  by  attach- 
ment, upon  the  consent-rule  K  And  so  where  the 
nominal  plaintifl'  is  nonsuited  upon  the  merits,  or  has 
a  verdict  and  judgment  against  him,  the  only  remedy 
is  by  attachment,  against  the  lessor  of  the  plaintiffs. 

In  proceeding  by  attachment,  a  copy  of  the  rule, 
with  the  officer's  allocatur  thereon,  should  be  per- 
sonally 

>•  Append.  Chap.  XL.  §  3.  f    Id.    ibid.     1     Salk.    259. 

^  Id.%2.  Barnes,  182. 
<i  2  H.  Blac.  248.  k  Run.  Eject.  415,  16;  7¥//j/ 

«  Run.  Eject.  415.  and  Baily,  Mich.  6  Geo.  II. 

Vol.  II.  S  I 


906  OF   COSTS- 

sonally  ''  served  on  the  party  liable  to  the  payment  of 
costs ;  and  at  the  same  time,  the  original  rule  should 
be  shewn  to  him  ',  and  a  demand  of  payment  made '': 
And  where  the  costs  are  ordered  to  be  paid  to  the 
attorney,  the  demand  may  be  by  the  acting  attorney 
in  the  cause,  although  he  act  in  the  name  of  another 
attorney  ^  And  if  the  costs  be  not  paid,  the  court, 
upon  an  affidavit  of  the  circumstances,  will  grant  an 
attachment.  In  this  court,  the  rule  for  an  attachment 
is  absolute  in  the  first  instance  '" ;  and  may  be  moved 
for  on  the  last  day  of  term ". 

To  assist  the  parties  in  the  recovery  of  costs,  they 
are  allowed  to  deduct  or  set  off  the  costs  in  one  ac- 
tion, against  those  in  another.  This  practice,  how- 
ever agreeable  to  natural  justice,  does  not  seem  to 
have  obtained  till  lately,  in  the  court  of  King's 
Bench":  But  in  the  Common  Pleas,  it  has  been 
frequently  allowed;  and  that,  not  only  where  the 
parties  have  been  the  same  ^',  but  also  where  they 
have  been  in  some  measure  different.  Thus,  a  party 
has  been  permitted  to  set  off  a  separate  demand, 

for 

h  3  T.  R.  35 1 .  Pope  V.  Smithy  "  5  Bur.  2686. 

fier  Cur.  °  2  Str.  891.  1203.  Bui.  A7. 

i  Id.  ibid.  Pri.  336.  4  T.  R.  124.  8  T. 

k  Hubbard  v.  Norton^  H.  36  R.  69. 

G.  Ill,  p  Barnes,  145.  2  Blac.  Rep. 

J  Say.  Rep.  95.  826.  Say.  Costs,  256.  S.  C. 

m  Per  Buller,  Just.   M.   24  Bui.  M.  Pri.  336.  3  Bos.  8c 

Geo.  III.  1  Bos    Sc  Pul.  477.  Pul.  28, 


OF  COSTS.  907 

for  costs  payable  to  himself  alone,  against  a  joint 
demand,  for  costs  payable  by  himself  and  others  "^ : 
and  he  has  also  been  permitted  to  set  off  a  joint  de- 
mand, for  costs  payable  to  himself  and  another, 
against  a  separate  demand,  for  damages  and  costs 
payable  by  himself  only  ^  But  where,  in  an  action 
of  trespass  against  four  defendants,  the  plaintiff  ob- 
tained a  verdict  against  one,  and  the  other  three  were 
acquitted,  the  court  would  not  suffer  the  costs  of  the 
three  defendants,  who  were  acquitted,  to  be  deduct- 
ed out  of  the  plaintiff's  costs,  against  that  defendant 
who  was  found  guilty;  declaring  the  motion  to  be 
unprecedented '.  And  a  judgment  recovered  by  A. 
against  B.  and  C.  cannot  be  set  off,  on  application  to 
the  general  jurisdiction  of  the  court,  against  another 
judgment  recovered  against  A.  by  the  assignees  of 
B.  under  an  insolvent-debtor's  act;  the  interest  of 
third  persons  intervening,  who  have  peculiar  claims 
by  the  statute  ^  Where  the  application  is  made  by 
the  party  to  whom  the  larger  sum  is  due,  the  rule  is 
for  a  stay  of  proceedings,  on  acknowledging  satis- 
faction for  the  less  sum  " :  But  where  the  less  sum 

is 

q    Barnes,     146.    but    see  336.  but  see  1  H.  Blac.  25. 

Barnes,  130.  217.  657. 

«•  Say.  Costs,  254.  2  Blac.         t  3  East,  149. 
Rep.  827.  S.  C.  cited  ;  and  see         "^  Bui.  M.   PH.  336.  S   T 

1  H.  Blac.  217.  657.  R.  69. 

"  Barnes,  145.  Bui.  M.  Pri. 


908 


OF  COSTS. 


is  due  to  the  party  applying,  the  rule  is  to  have  it 
deducted,  and  for  a  stay  of  proceedings,  on  payment 
of  the  balance "". 


V  Say.  Costs,  254.  and  see  4  T.  R.  124. 


I 

1 


[     909     ] 


CHAPTER  XLl. 


Of  Execution. 

A  FTER  final  judgment  signed  "*,  the  plaintiff  may 
in  general,  at  any  time  within  a  year  and  a  day, 
and  whilst  the  parties  continue  the  same,  take  out 
execution  against  the  body,  lands,  or  goods  of  the 
defendant;  provided  there  be  no  writ  of  eiTor  depen- 
ding, or  agreement  to  the  contrary  ^. 

There  are  some  cases  however,  in  which  execu- 
tion cannot  be  taken  out,  without  leave  of  the  court; 
as  where,  in  actions  on  a  policy  of  assurance,  there 
is  a  verdict  for  the  plaintiff  against  one  of  several  un- 
derwriters, and  the  rest  have  entered  into  the  consoli- 
dation rule,  and  agreed  to  be  bound  by  it ".  And  it 
seems,  that  on  a  writ  of  error  coram  nobis,  execu- 
tion taken  out  without  leave  of  the  court  is  irregu- 
lar**. So  where  in  ejectment ,  the  landlord  is  admitted 
to  defend  on  the  tenant's  non-appearance,  and  judg- 
ment is  thereupon  signed  against  the  casual  ejector, 
with  a  stay  of  execution  till  further  order,  the  lessor 
of  the  plaintiff  having  succeeded,  must  apply  to  the 
court  for  leave  to  take  out  execution;  and  in  such 
case,  if  a  writ  of  error  be  brought  by  the  landlord, 

it 

a  And  even  before  it  is  en-  Hardw.  53.  Jnte,  505. 

tered.  Gilb.  C.  P.  24.  Law  of  ^  .^nte,  438,  9.  557. 

Executions,  43.  d  Say.    Rep.    166.   Barnes. 

''   1    Mod.   20.    Cas.   tem/i.  201.  2  Blac.  Rep.  1067. 


910  OF  EXECUTION. 

it  may  be  shewn  for  cause,  and  will  be  a  sufficient 
reason,  against  taking  out  execution^:  but  if  the 
landlord  omit  the  opportunity  of  shewing  it  for 
cause,  the  execution  is  regular,  and  cannot  be  set 
aside  ^  Where  a  verdict  is  taken  pro  forma  at  the 
trial,  for  a  certain  sum,  subject  to  the  award  of  an 
arbitrator,  the  sum  afterwards  awarded  must  be  taken 
as  if  it  had  been  originally  found  by  the  jury,  and 
the  plaintiff  is  entitled  to  enter  up  judgment  for  the 
amount,  without  first  applying  to  the  court  for 
leave  ^.  But  where  a  verdict  is  taken,  and  judgment 
entered  up,  for  a  less  sum  than  is  afterwards  found 
due  by  the  award,  the  plaintiff  cannot  take  out  exe- 
cution for  the  whole  sum  awarded,  but  only  for  the 
sum  recovered  by  the  judgment;  and  must  proceed 
for  the  residue,  by  action  or  attachment.  Bonner  and 
Charlton,  E.  43  Geo.  III.  K.  B. 

Where  several  actions  are  brought  against  differ- 
ent parties  for  the  same  debt,  as  upon  a  bail-bond, 
promissory  note,  or  bill  of  exchange,  each  party  is 
liable  to  an  execution  for  the  whole  debt,  and  the 
costs  of  the  action  against  himself;  but  neither  of 
them  is  liable  to  the  costs  of  the  actions  against  the 
other  defendants  ^.  And  in  suing  out  execution  in 
actions  upon  a  bail-bond,  we  have  seen,  that  it  is 
usual  to  apportion  the  debt  and  costs  in  the  original 
action,  amongst  the  different  defendants,  so  as  to 
levy  a  part  on  each,  together  with  his  own  costs  '. 

in  an  action  of  debt  on  bond  for  a  penalty,  the 
sheriff  may  be  directed  to  levy  the  sum  secured  by 
the  condition,  together  with  the  damages  and  costs 
recovered  by  the  judgment,  and  all  subsequent  costs 

of 

e2  Str.  1241.  but  see  1  Salk.  84.  Barnes,  58. 

f  2  Bur.  757.  contra. 

g  1  East,  401.  1  Bos.  Sc  Pul.  ^  Ante,  482. 

97.  480.  3   Bos.  £c  Pul.  244.  '  Jnte,  250. 


OF   EXECUTION.  911 

of  the  execution,  &c. ;  which  direction  is  usually  in- 
dorsed on  the  writ :  And  by  a  late  act  of  parliament, 
(43  Geo.  III.  c.  46.  §  5.)  "  in  every  action  in  which 
"  the  plaintiff' shall  be  entitled  to  levy  under  an  exe- 
**  cution  against  the  goods  of  the  defendant,  such 
'*  plaintiff'  may  also  levy  the  poundage,  fees  and  ex- 
"  penses  of  the  execution,  over  and  above  the  sum 
"  recovered  by  the  judgment."  But  this  clause  of  the 
act  seems  only  to  apply  to  cases  where  the  execution 
is  taken  out  against  the  goods  of  the  defendant. 

The  execution  following  the  judgment,  is  either 
for  the  plaintiff",  or  for  the  defendant:  for  the  former, 
upon  a  judgment  in  assumpsit j  co'venant^  case,  reple- 
vin, or  trespass,  for  the  damages  and  costs,  or  in 
debt,  for  the  debt  damages  and  costs  recovered;  to 
be  levied,  in  an  action  against  an  executor  or  admi- 
nistrator, of  the  goods  of  the  testator  or  intestate,  in 
the  hands  of  the  defendant,  if  he  hath  so  much  there- 
of in  his  hands  to  be  administered,  and  if  not,  then 
the  costs,  or  damages  and  costs,  to  be  levied  de  bonis 
propriis  K  Upon  a  judgment  in  detinue,  the  execution 
is  for  the  goods  or  their  value,  with  damages  and 
costs.  For  the  defendant,  upon  a  judgment  in  reple- 
vin at  common  law,  the  execution  is  for  a  return  of 
the  goods;  or  upon  the  statute  17  Car.  II.  c.  7.  for 
the  arrearages  of  rent  and  costs:  and  in  other  actions, 
upon  a  judgment  of  non-pros,  nonsuit  or  verdict,  it 
is  for  the  costs  only. 

To  obtain  execution  of  the  damages,  or  debt  da- 
mages and  costs  recovered,  or  the  costs  only,  there 
are  four  different  species  of  writs:  first,  2i  fieri  facias, 
against  the  goods;  secondly,  an  elegit,  against  the 
goods,  and  a  moiety  of  the  lands;  thirdly,  c\\\  extendi 
facias,  or  extent,  against  the  w  hole  of  the  lands,  or 

in 

>  Cro.  Eliz.  887.  Dyer,  185  (6).  Append,  Chap.  XLI.  §6.11. 


912  OF   EXECUTION. 

in  some  cases,  against  the  body  lands  and  goods; 
fourthly,  a  capias  ad  satisfaciendum  against  the  per- 
son. These  are  judicial  writs,  issuing  out  of  the 
court  where  the  record  is,  upon  which  they  are 
grounded;  and  therefore  when  a  record  is  removed 
here  from  a  county-palatine,  or  other  court,  by  writ 
of  error,  and  the  plaintiff  is  nonprossed,  this  court . 
will  award  execution ''.  So  if  proceedings  are  re- 
moved out  of  the  county  court,  or  other  court  not 
of  record,  by  writ  of  false  judgment,  and  the  plain- 
tiff is  nonprossed,  the  execution  shall  issue  out  of  the 
court  above ' :  but  in  the  latter  case,  a  scire  facias 
seems  to  be  necessary  "\ 

The  plaintiff  having  sued  out  one  writ  of  exe- 
cution, may,  before  it  is  executed,  abandon  that 
writ,  and  sue  out  another  of  a  different  sort:  Or  he 
may  have  several  writs,  of  the  same  sort,  running 
against  the  defendant  or  his  goods  at  the  same  time, 
in  different  counties.  But  after  the  execution  of  one 
^vrit,  the  plaintiff  cannot  sue  out  or  proceed  upon 
another,  of  the  same  or  a  different  sort,  until  that 
which  has  been  executed  is  returned;  and  then,  if 
a  part  only  be  levied  upon  a  fieri  facias^  the  plain- 
tiff may  have  an  alias  fieri  facias^  or  other  execu- 
tion for  the  remainder;  or  if  the  capias  ad  satisfacien- 
dum be  rendered  ineffectual,  by  the  death  or  escape 
rjf  the   defendant,   the   plaintiff  may   have   a   new 

wril: 

'^  3  T.  R.  657.  and  see  the  1 12.  tit.  Faux -judgment^  6. 

statutes    19  G.  III.  c.  70.  33  "'  Id.  Bro.  Brev.  Jud.  206 

G.  III.c.  68.  318.320. 

'  Bro.  Abr.  tit.  E.rccutiovs. 


i 


OF  EXECUTION.  913 

writ  for  the  whole:  And  he  may  sue  out  and 
execute  several  elegits,  for  lands  in  different  coun- 
ties. 

A  ^eri  facias  is  a  common-law  execution ;  and, 
except  in  a  county  palatine,  is  directed  to  the 
sheriff  of  the  county  where  die  action  is  laid", 
commanding  him  that  of  the  goods  and  chattels  of 
the  defendant,  in  his  bailiwick,  he  cause  to  be 
made,  or  levied,  the  sum  recovered,  and  have  it 
before  the  king  at  PFes (minster,  (by  bill,  or  by  ori- 
ginal, wheresoever,  &c.)  on  the  return-day  °,  In 
point  of  form,  it  should  invariably  pursue  the 
judgment;  and  therefore  it  has  been  hoiden,  that 
a  special  execution  is  not  warranted  by  a  general 
judgment ''. 

This  writ  should  be  tested  in  term-time  'J,  on  a  day 
after  the  judgment  is,  or  may  be  supposed  to  have 
been  given:  And  as  the  judgment  relates  in  law 
to  the  first  day  of  the  term  wherein  it  is  signed,  it 
seems  that  t\\<t  fieri  facias  may  be  tested  on  any  day^ 

in 

"  A  writ  o{  fieri  facias  di-  Chap.  XLI.  §   1,    8cc.  in  debt^ 

Fectecl  in  the  first  instance  to  id.  §  7,  &c.  in  detinue,  id.  §  9. 

the  bailiff  of  the  isle  of  Ely,  out  in  covenant,  id.  §  1 2 .  in  caae,  id. 

of  this  court,  is  erroneous  and  §  13,  &c.  in  refUevin,  id.  §  16. 

void;  and  the  bailiff" is  guilty  of  in  trespass,  id.   §    17,  £cc.  and 

a  trespass  in  executing  it.  3  {or  the  defendant,  on  a.  ?ion/iros, 

East,   128.  &c.  id.  §  25,  &c. 

o  For  the  forms  of  the  writ        i'  1  T.  R.  80.  and  see  6  T. 

oi  fieri  facials  for  the  filaintiff,  R.  525.  7  T.  R.  27. 
in    assu7njisitf     see    Append.         'i  2  Salk.  700. 

Vol.  II.  2  K 


014  OF    EXECUTION. 

in  that  term ' ;  and  it  should  be  made  returnable  m 
term-time,  on  a  day  certain  by  bill,  or  by  origi- 
nal, on  a  general  return-day.  If  it  be  tested'  or 
returnable  '  out  of  term,  or  in  an  action  by  bill,  if 
it  be  returnable  on  a  general  return-day",  it  is 
void,  or  at  least  erroneous;  and  may  be  quashed 
or  set  aside  on  motion,  together  with  the  proceed- 
ings that  have  been  had  under  it.  A  writ  o{  fieri 
facias  must  be  signed,  as  well  as  sealed  ";  and  may 
be  amended,  by  adding  or  altering  the  teste  or 
return  " . 

At  common  laAV,  the  fieri  facias  had  relation  to 
its  testc^  and  bound  the  defendant's  goods  from  that 
time ;  so  that  if  the  defendant  had  afterwards  sold 
the  goods,  though  bond  fide  and  for  a  valuable  con- 
sideration, they  were  still  liable  to  be  taken  in  exe- 
cution, into  whose  hands  soever  they  came ".  This 
relation  being  productive  of  great  mischief  to  pur- 
chasers, was  taken  away  by  the  statute  29  Car.  II. 
c.  3.  \  16.  which  enacts  "  that  no  writ  ai  fieri  fa- 
"  cias^  or  other  writ  of  execution,  shall  bind  the 
"  property  of  the  goods  of  the  party,  against  whom 
"  such  writ  of  execution  is  sued  forth,  but  from  the 

"  time 

r  1  Cromp.  372,  w  Say.   Rep.    12.  Davey  v. 

s  2  Salk.  700.  HollingswQj-th  and  another,  T. 

t    Davey   v.    HoUings'U)orth  24  Geo.  III.  K.  B. 

and  another,  T.  24  Geo.  III.  ^  Gilb.  Exec.  13,  14.  8  Co. 

K.  B.  171.  Cro.  Eliz.  174.440.  Cro. 

"  1  Wils.  155.  Car.  149.   2    Vent.  f218.  7  T. 

'  R.  E.  1659.  R.  21,  2.  but  see  I  Lev.  174. 


OF   EXECUTION.  915 

"  time  that  such  writ  shall  be  delivered  to  the  sheriff, 
"  under-sheriff,  or  coroners,  to  be  executed;  and 
"  for  the  better  manifestation  of  the  said  time, 
"  the  sheriff,  under-sheriff,  and  coroners,  their 
"  deputies  and  agents,  shall  upon  the  receipt  of 
*'  any  such  writ,  (without  fee  for  doing  the  same,) 
*'  indorse  upon  the  back  thereof,  the  day  of  the 
"  month  or  year  whereon  he  or  they  received  the 
"  same."  But  neither  before  this  statute,  nor  since, 
is  the  property  of  goods  altered^  but  continues  in  the 
defendant,  till  execution  executed.  The  meaning 
of  these  words,  "  that  no  writ  of  execution  shall 
"  bind  the  property,  but  from  the  delivery  of  the 
"  writ  to  the  sheriff"  is,  that  after  the  writ  is 
so  delivered,  if  the  defendant  make  an  assignment  of 
his  goods,  unless  in  market-overt,  the  sheriff  may 
take  them  in  execution  "". 

This  statute,  being  made  in  favoiu'  of  purchasers, 
does  not  alter  the  law  as  between  the  parties: 
therefore,  if  the  execution  be  tested  in  the  defend- 
ant's life-time,  it  may  be  taken  out^  and  execu- 
ted "^  after   his  death.     And    the    sheriff  deriving 

his 

y  2  Eq.  Cas.  Abr.  38  1 .  and  '  20.  1  Bos.  and  Pul.  571.  Alitcr^ 

see  1  Ld.  Raym.  252.  if  the  execution  be  tested  after 

2  1  Ld.  Raym.    695.  Com.  the  defendant's   death.    6  T. 

Rep.  117.  Bunb.  271.  12xMod.  R.  368. 

5.   2  Ld.  Raym.  850.  7  Mod.  »  Qilb.  Exec.   15,   16.  Law 

95,  S.  C.  and  see  3  P.  Wms.  oi  Exec.  46.  Cro.  Eliz.    181. 

399.  and  the  case  of  Finch  v.  1  Mod.  188.    Comb.   33.  Pr. 

the  earl  of  Tfmchelsea^  id.  in  Reg.  215.  7  T.  R.  20. 
nods.    Willcs,    131.  7  T.   R. 


916  OF   EXECUTION. 

his  authority  from  the  writ,  it  has  been  holden, 
that  if  the  plaintiff  die,  after  a  fieri  facias  sued  out, 
it  may  be  executed  notwithstanding;  and  his  exe- 
cutor or  administrator  shall  have  the  money '':  Or 
if  the  plaintiff  has  made  no  executor,  or  admini- 
stration is  not  committed,  the  money  must  be 
brought  into  court,  and  there  deposited,  until 
&c^ 

The  king  is  not  bound  by  this  statute'':  And 
therefore  an  extent  at  his  suit,  still  binds  from  the 
teste,  or  fiat  of  the  baron  on  which  it  issues ".  And 
as  between  different  plaintiffs,  if  two  writs  of  execu- 
tion are  delivered  to  the  sheriff  on  the  same  day, 
he  ought  to  execute  that  first  which  was  first  deli- 
vered \  except  it  be  fraudulent,  and  then  he  ought 
to  execute  the  other '^;  and  the  court  on  motion 
will  not  assist  the  plaintiff  in  the  second  execution ''. 
But  if  the  sheriff  levy  goods  in  execution,  by  vir- 
tue of  the  writ  last  delivered,  and  make  sale  of 
them,  w  hether  the  last  writ  was  delivered  upon  the 
same  or  a  subsequent  day,  the  property  of  the 
goods  is  bound  by  the  sale,  and  the  party  cannot 
seize  them  by  virtue  of  his  execution  first  deli- 
vered; 

^  Cro.  Car.  459.    1  Sid.  29.  222.     2    Str.    754.    S.    C.    2 

2   Ld.  Raym.   1073.  1   Salk.  Blac.  Rep.  1251. 

-,22.  S.  C.  f  1  T.  R.  729. 

'^  Noy,  73.    2   Ld.   Raym.  gl  Wils.  44.  and  see  Peakc 

J073,  Cas.  M.Pri.  66. 

«l  3  Atk.  739.   1  Vez.    196.  «»  1  T.  R.  729. 

^  Bunb.     39.    Gilb.    Rep. 


OF   EXECUTION.  917 

vered;    but  he   may  have  his  remedy  against  the 
sheriff'. 

By  this  writ,  the  sheriff  has  authority  to  seize 
and  sell  every  thing  that  is  a  chattel,  belonging  to 
the  defendant  ^  except  his  necessary  wearing  ap- 
parel: It  has  even  been  holden,  that  if  the  defend- 
ant have  two  gowns,  the  sheriff  may  sell  one  of 
them  *".  And  he  may  sell  leases  or  terms  for  years, 
and  fructiis  mdustriaksj  as  corn  growing,  which 
goes  to  the  executor';  or  fixtures  which  may  be 
removed  by  the  tenant "" :  but  furnaces,  or  apples 
upon  trees,  which  belong  to  the  freehold,  and  go 
to  the  heir,  cannot  be  sold  by  the  sheriff  on  this 
writ".  Money  in  the  sheriff's  hands,  belonging  to 
the  defendant,  may  be  taken  in  execution  ° :  But 
the  sheriff  cannot  take  bank-notes ",  &c.  nor 
goods  pawned,  or  gaged  for  debt;  nor  goods  de- 
mised or  letten  for  years;  nor  goods  distrained '^ 
or  taken  and  in  custody  of  the  sheriff  upon  a  .for- 
mer execution '^;  nor  any  thing  which  cannot  be 
sold,  as  deeds,  writings  \  &.c. 

In 

i  1  Ld.  Raym.  252.  1  Sulk.  "  Gilb.  Exec.  19. 

320.  Garth.  419.  S.  C.  and  see  »  Doug.  231. 

the  case  of  Rybot  v.  Peckham,  p  Cas.  temp.  Hardw.  53. 

1  T,  R.  731.  in  notts.  4  Bac.  Abr.  tit.  Exec.  352. 

J  Gilb.  Exec.  19.  3  Co.  12.  and  see  Willes,  131. 

^  Comb.  356.  r  Show.  173.  3  Mod.  236. 

>  Gilb.  Exec.  19.  •  Cas.  tanfi.  Hardw.  53. 

«"  1  Salk.  368.  3  Atk.  13. 


918  OF   EXECUTION. 

Ill  assigning  a  term  for  years,  which  has  been 
taken  in  execution,  it  is  not  necessary  for  the  she- 
riff to  state  in  the  assignment,  the  particular  inter- 
est which  the  defendant  has,  for  he  may  not  be  able 
to  come  at  the  precise  knowledge  of  it;  but  it  is 
sufficient  for  him  to  state,  that  the  defendant  is 
possessed  of  the  premises  for  a  term  of  years,  yet 
to  come  and  unexpired,  and  to  assign  all  his  interest 
therein  generally*;  and  it  is  more  prudent  in  the 
sheriff  to  state  the  interest  in  this  way,  for  if  he  at- 
tempt to  state  it  particularly  and  fail,  the  vendee 
will  not  have  a  good  title".  It  is  said,  that  if  a 
sheriff,  on  a  Jieri  facias,  sell  a  lease  or  term  of  an 
house,  he  cannot  legally  put  the  party  out  of  pos- 
session, and  the  vendee  in;  but  the  vendee  must 
bring  his  ejectment".  This  however  must  be 
understood  of  a  forcible  expulsion ;  for  it  has  been 
determined,  that  luider  a  feri  facias,  the  sheriff 
may  justify  expelling  the  defendant  peaceably "'',  or 
in  other  words,  if  the  defendant  will  consent  to  go 
out,  the  sheriff  may  put  the  vendee  in  possession. 
If  the  defendant,  subsequent  to  the  deliver)^  of  the 
writ  to  the  sheriff,  make  an  assignment  of  a  lease- 
hold estate,  the  judgment- creditor  need  not  bring 
a  suit  in  equity  to  come  at  the  estate,  by  setting  aside 
the  assignment;  but  may  proceed  at  law  to  sell  the 

term, 

t  4  Co.  74.  Cro.   Eliz.  584.         ^  2  Show.  85. 
S.  C.  w  3  T.  R,  292. 

a  Id.  ibid.  3  T.  R.  294. 


OF  EXECUTION.  919 

term,  and  the  vendee,  who  is  generally  a  friend  of 
the  plaintiff,  will  be  entitled  at  law  to  the  posses- 
sion, notwithstanding  such  assignment  ''.  Where 
the  defendant  has  only  an  equity  of  redemption,  in 
a  leasehold  estate,  it  seems  that  an  execution  will 
not  affect  it,  as  the  legal  estate  is  in  the  mortgagee  ^ : 
The  plaintiff's  only  remedy  in  that  case,  is  by 
filing  a  bill  in  equity,  to  redeem  the  estate,  by 
paying  off  the  principal  and  interest  due  on  the 
mortgage  ^'. 

The  sheriff,  upon  this  writ,  may  take  any  goods 
which  have  been  fraudulently  sold,  or  conveyed 
away  by  the  defendant;  and  a  principal  badge  of 
fraud  is  the  defendant's  continuing  in  possession '^t 
For  if  a  man  sell  goods,  and  still  continue  in  pos- 
session, as  visible  owner  of  them,  such  sale  is  frau- 
dulent and  void  as  against  creditors'*.  So  if  a 
creditor  by  fieri  facias  seize  the  goods  of  his 
debtor,  and  suffer  them  to  remain  long  in  the 
debtor's  hands,  and  another  creditor  obtain  a 
subsequent  judgment  and  execution,  it  has  been 
determined  often,  that  this  is  evidence  of  fraud  in 
the   first  creditor,  and  the  goods  in  the  hands  of 

the 


^  3  Atk.  739. 

Pri.    205.    357,    8.    8    T.  R. 

y  Id.  ibid. 

82.    521.   but   see    2   Bos.   & 

'■  Gilb.   Exec.   15.   and  see 

Pul.  59.  3  Esp.  Cas.  Ni.  Pru 

Twine's     case,     3     Co.      81. 

52.  S.  C. 

Godb.    161.   I   F.sp.  Cas.  A'i. 

*  Prec.    in    Chan.   286,   7. 

920  OF  EXECUTION. 

the  debtor  remain  liable  '\  So  where  it  was  prov- 
ed, in  an  action  for  a  false  return,  that  the  war- 
rant upon  a  fieri  facias  was  directed  to  three 
persons,  as  special  bailiifs;  that  the  plaintiff's  at- 
torney was  present  at  the  time  of  executing  it,  and 
ordered  one  of  the  persons  to  use  the  defendant 
kindly,  and  not  to  take  any  of  his  household  goods, 
for  that  his  landlord  would  soon  be  in  the  country, 
and  pay  the  debt;  and  thereupon  another  of  the 
persons  rode  round  the  farm  and  grounds,  and 
said,  "  /  seize  all  this  corn  and  cattle^''''  and  took 
some  account  thereof,  for  the  use  of  the  plaintiff; 
afterwards,  the  landlord  sued  out  a  fieri  facias^  and 
the  sheriff's  bailiffs  not  being  in  possession  of  the 
goods,  under  the  former  writ,  nor  having  left  any 
body  for  them,  he  got  his  execution  executed; 
and  there  was  no  proof  that  he  promised  to  pay  the 
j)laintiff;  it  was  left  to  the  juiy,  upon  this  evidence, 
whether  the  first  execution  was  intended  to  be,  or 
was  really  executed;  and  the  jury  thought  it  was 
not,  and  gave  a  verdict  for  the  sheriff,  which  was 
afterwards  confirmed  by  the  court,  on  a  motion 
for  a  new  trial ". 

But  if  the  defendant  sell  his  goods  bond  fide^  and 
lor  a  valuable  consideration,  before  the  delivery 
of  the  writ  to  the  sheriff,  they  cannot  be  taken  in 
execution;  and  though  he  sell  them  fraudulently, 

yet 

'^  Prec.  in  Chan.  286,  r.  M  Wils.  44. 

I  Vcz.  24i.  456. 


i 


OF  EXECUTION.  921 

yet  if  they  be  afterwards  sold  to  another,  bona  fide ^ 
they  are  not  liable  to  be  taken  in  the  hands  of  die 
second  vendee  "*.  And  if  A^  indebted  to  B.  and  C, 
after  being  sued  to  judgment  and  execution  by  B^ 
go  to  C.  and  voluntarily  give  him  a  warrant  of  at- 
torney to  confess  judgment,  on  which  judgment  is 
immediately  entered,  and  execution  levied  on  the 
same  day  on  which  B.  \vould  have  been  intitled  to 
execution,  and  had  threatened  to  sue  it  out;  the 
preference  so  given  by  A.  to  C.  is  not  unlawful 
nor  fraudulent,  within  the  meaning  of  the  -statute 
13  £/iz.  c.  5^ 

In  an  action  against  one  of  two  partners,  the 
sheriff  must  seize  all  their  joint  property,  because 
the  moieties  are  undivided;  for  if  he  seize  but  a 
moiety,  and  sell  that,  the  other  will  have  a  right 
to  a  moiety  of  that  moiety ;  but  he  must  seize  the 
whole,  and  sell  a  moiety  thereof  undivided,  and  the 
vendee  will  be  tenant  in  common  with  the  other 
partner  ^* 

On  a  fieri  facias,  the  sheriff  is  bound  at  his  pe- 
ril to  take  only  the  goods  of  the  defendant:  and 
therefore  if  he  take  the  goods  of  a  third  person, 
though  the  plaintiff  assure  him  they  are  the  defcn- 
dant's,  he  is  a  trespasser;  for  he  is  obliged  at  his 
peril  to  take  notice  whose  the  goods  are.  And  if 

he 

■J  Godb.  161.  Rep.  277.  Cowp.  449.  Doug. 

*=  5  T.  R.  235.  650.  1    East,  367.    3    Bos.    & 

f  1  Salk.  392.  and  see  2  Ld.  Piil.  254. 
Raym.  871.  Comb.  217.  Com. 

*  From  the  Addenda  to  the  London  edition.  "  In  such  case,  the  court 
of  common  pleas  will  not,  at  the  request  of  the  partnership  creditors, 
give  the  sheriiVtime  to  return  the  writ,  until  an  account  can  be  t.iken 
of  the  several  claims  upon  the  partnership  property.  3  Bos.  &  Pul. 
288.  And  2i  fieri  facias  havinpf  issued  afjainst  the  effects  of  the  defen- 
<lant,  who  was  jointly  concerned  in  a  manufactory  with  other  persons, 
to  whom  he  was  indebted  to  a  greater  amount  than  his  whole  share, 
and  tlie  sheriff  having  seized  the  whole  of  the  partnership  property, 
that  court  refused  to  refer  it  to  the  prothonotary,  to  inquire  what  was 
the  defendant's  interest  in  the  effects  seized."  .'^  Bos.  i<  Pul  289 

Vol.  II.  2L 


922  OF  EXECUTION. 

he  doubt  wliether  the  goods  shewn  him  are  the 
defendant's,  he  may  summon  a  jury,  debene  esse.,  to 
satisfy  himself^:  This  will  justify  tlie  sheriiFin  re- 
turning, if  it  be  so  found,  that  the  defendant  has  no 
goods  within  his  baiUwick;  or  if  it  be  found  that  he 
has,  will  mitigate  damages  in  an  action  of  trespass, 
provided  the  goods  should  afterwards  turn  out  not 
to  be  the  defendant's.  And  as  this  is  not  a  proceed- 
ing immediately  from  the  court,  but  merely  to  in- 
demnify the  sheriff  in  making  his  return  to  the  writ, 
the  court  will  not  set  aside  the  inquisition  of  a  jury, 
summoned  by  the  sheriff  to  inquire  in  whom  the 
property  of  goods  seized  by  him  under  21.  fieri  facias 
is  vested ''. 

As  the  sheriff  cannot  take  the  goods  of  a  diird 
person,  so  if  the  defendant  become  bankrupt^  before 
the  delivery  of  the  writ  to  the  sheriff,  or  as  it 
should  seem,  before  it  is  actually  executed ',  the  she- 
riff cannot  legally  take  or  dispose  of  them,  after  no- 
tice of  the  act  of  bankruptcy,  and  of  a  commission 
sued  out  or  docket  struck:  For,  per  Holt  Ch.  J. 
"ifa  writof  execution  be  deliv^ered  to  the  sheriff 
against  A.  who  becomes  bankrupt  before  it  is  exe- 
cuted, the  execution  is  superseded;  consequently, 
the  property  of  the  goods  is  not  absolutely  bound 

by 

sDalt.     Sher.     146.    Gilb.     R.  177. 
Exec.  21.  Bac.  Abr.  tit.  Exec.         ^  6  T.  R.  88. 
352.  4  T.  R.  633.  648.  7  T.         '  1  Lev.  173,  4. 


OF   EXECUTION.  923 

by  the  delivery  of  the  writ  to  the  sheriff  J."  But  if 
the  sheriff  seize  and  sell  the  goods,  before  he  has  no- 
tice of  an  act  of  bankruptcy,  &.c.  he  is  excused''; 
and  if  he  sell  them  after  such  notice,  though  he  may 
be  sued  in  tro'uer  \  yet  he  is  not  liable  to  an  action 
of  trespass  '".  An  execution  against  the  goods  of  a 
bankrupt,  taken  out  after  his  certificate  is  signed,  but 
before  it  is  allowed,  is  valid":  And  where  a  defen- 
dant was  taken  in  execution,  under  similar  circum- 
stances, and  paid  the  debt  and  costs  to  the  sheriff, 
the  court  on  application  refused  to  relieve  him.  But 
\i2i  fieri  facias^  issued  against  a  bankrupt  before  his 
certificate  obtained,  be  not  executed  till  after,  the 
court  will  order  the  goods  to  be  restored,  even  though 
he  has  not  pleaded  the  certificate  •* :  and  if  any  thing 
be  alleged  to  invalidate  the  effect  of  the  certificate, 
the  court  will  direct  a  trial  on  a  plea  of  bankruptcy ''. 
On  2i  fieri  facias  against  a  husband^  it  seems  that 
the  sheriff  cannot  take  in  execution  goods  vested  in 
trustees  before  marriage,  for  the  benefit  of  the  isiife^. 

And 

J  1  Ld.  Raym.  252.  and  see         "  JVeatly  and  Eaglcton^  E.  24 

2Eq.  Cas.  Abr.  581.  Geo.  III.  K.  B. 

k  1  Blac.  Rep.  205.  2  Blac.         p  1  Bos.  5c  Pul.  427. 
Rep.  829.  S.  P.  4  Id.  ibid. 

1  1  Burr.  20.  1    Blac.   Rep.         ••  Cowp.     432.     3    T;      R. 

65.  S.C.  618.  and  see  Co.  Lit.  351.  a. 

Bi  1  T.  R.475.  n.  1.   but  see  2  Vern.  239.  4 

n/rf.  361.  and  see   1   Blac.  T.  R.  638,9.   8    T.  R.   82. 

Rep.  400,  521, 


924  OF   EXECUTION. 

And  it  has  been  determined  at  nisi  prius^  that  the 
mere  possession  of  goods  is  not  sufficient  to  subject 
them  to  an  execution,  issued  against  the  party  pos- 
sessing them,  if  it  be  satisfactorily  proved  that  they 
were  really  and  bond  fide  sold  to  a  third  person,  as  a 
trustee  for  his  wife,  and  possession  taken  by  such 
third  person '. 

On  2,  fieri  facias  against  an  executor^  for  his  own 
debt,  the  goods  of  the  testator,  in  the  hands  of  the 
defendant,  cannot  be  taken  in  execution  '.  But  if  an 
executrix  use  the  goods  of  her  testator  as  herown,  and 
afterwards  marry,  and  then  treat  them  as  the  goods 
of  her  husband,  she  shall  not  be  allowed  to  object  to 
tlieir  being  taken  inexecution  forherhusband'sdebt". 

The  sheriff,  upon  a  fieri  facias,  cannot  justify 
breaking  open  the  outer  door  of  a  dwelling-house  ' ; 
but  if  that  be  open,  he  may,  after  demanding  and 
being  refused  admittance,  break  open  an  inner 
door''':  And  as  goods  may  be  distrained,  so  it 
seems  they  may  be  tiiken  in  execution,  through 
the  windows,  if  open  ''.  When  the  officers  are  once 
in  the  house,  they  may  break  open  any  chamber- 
doors,  or  trunks,  for  executing  the  writ^,  A 
seizure  of  part  of  the  goods  in  a  house,  by  virtue 
oi2i  fieri  facias,  in  the  name  of  the  whole,  is  a  good 

seizure 

-^  2  Esp.  Cas.   A7.  Pri.  574.  5  Co.  93.  Gilb.  Exec.    17,  18, 

*  4T.  R.  621,  Cowp.  1. 
>i  1   Bos.    &c    Pul.     293.     2         ^^  Comb.  17. 
Ksp.  Cas.  Mi.  Pri.  657.  S.  C.         ^1  Rol.  Abr,  671. 
V  J  8    Ed.   IV.    4.   pi.    19.        y  2  Show.  87. 


i 


OF    EXECUTION.  925 

seizure  of  all  ^ :  And  the  sheriff,  by  the  seizure,  has 
such  a  property  in  the  goods,  that  he  may  maintain 
trespass  or  tro'uer^  against  the  defendant  or  a  third 
person,  for  taking  them  away  ^.  And  he  may  sell 
them  after  the  return  of  the  writ,  and  even  after  he 
is  out  of  office,  without  a  venditioni  exponas  ^. 

But,  before  the  removal  of  the  goods,  the  sheriff 
should  take  care,  if  the  defendant  be  tenant  of  the 
premises  on  which  the  goods  are  taken,  that  the 
landlord  is  satisfied  what,  if  any  thing,  is  due  to  him, 
not  exceeding  a  year's  rent.  For  by  the  statute  8 
Ann.  c.  14.  ()  1.  "no  goods  or  chattels  whatsoever, 
"  lying  or  being  in  or  upon  any  messuage,  lands  or 
*'  tenements,  which  are  or  shall  be  leased  for  life  or 
*'  lives,  term  of  years,  at  will,  or  otherwise,  shall  be 
"  liable  to  be  taken  by  virtue  of  any  execution,  on 
"  any  pretence  whatsoever,  unless  the  party,  at  whose 
"  suit  the  said  execution  is  sued  out,  shall  before  the 
*'  removal  of  such  goods  from  off  the  said  premises, 
"  by  virtue  of  such  execution  or  extent,  pay  to  the 
"  landlord  of  the  said  premises,  or  his  bailiff,  all 
*'  such  sum  or  sums  of  money,  as  are  or  shall 
*'  be  due  for  rent  for  the  said  premises,  at  the 
"  time  of  the  taking  such  goods  or  chattels,  by 
*'  virtue  of  such  execution,  provided  the  said  ai'- 

"  rears 

7'  2  Ld.  Raym.  725.  »>  Cro.  Jac.   73.    Yelv.   44. 

^GWh.Exec.  15.2  Saund.  S.  C.  1  Salk.  323.  1  Vez. 
4T.  2  Ld.  Raym.  1073.  196. 


926  OF   EXECUTION. 

*"  rears  of  rent  do  not  amount  to  more  than  one  year's 
"  rent;  and  in  case  the  said  arrears  shall  exceed  one 
"  year's  rent,  then  the  said  party,  at  whose  suit  such 
"  execution  is  sued  out,  paying  the  said  landlord  or 
"his  bailiff  one  year's  rent,  may  proceed  to  execute 
"his  judgment,  as  he  might  have  done  before  the 
"  making  of  this  act ;  and  the  sheriff,  or  other  officer, 
"  is  thereby  empowered  and  required  to  levy,  and 
"  pay  to  the  plaintiff,  as  well  the  money  so  paid  for 
"rent,  as  the  execution- money." 

"  Provided  always,  that  nothing  in  this  act  con- 
"  tained  shall  extend,  or  be  construed  to  extend,  to 
"  let,  hinder  or  prejudice  her  majesty,  her  heirs  or 
"  successors,  in  the  levying,  recovering,  or  seizing 
"any  debts,  fines,  penalties  or  forfeitures,  that  are  or 
"shall  be  due,  payable  or  answerable  to  her  said 
"majesty,"  he''. 

This  statute  extends  to  all  manner  of  execu- 
tions for  the  subject,  upon  judgments  for  the  de- 
fendant as  well  as  the  plaintiff'';  and  the  landlord 
is  intitled  to  his  whole  rent,  without  deduction 
of  poundage  ^.  But  after  he  has  had  one  year's  rent 
paid  him,  he  is  not  intitled  to  another,  upon  a  se- 
cond execution^;  and  the  ground-landlord  is  not 
within  the  act,  where  there  is  an  execution  against 

the 

■^  §  8.  and  see  Bunb.  5. 269,        «  1  Str.  643. 
d  2  Wils.  140.  f2  Str.  1024. 


OF    EXECUTION.  927 

the  under-lessee  ^.  The  goods  of  a  tenant  are  liable 
to  a  year's  rent,  notwithstanding  an  outlawry  in  a 
civil  suit''.  And  where  a  sheriff's  officer,  being  in 
possession  of  the  tenant's  effects  under  an  outlawry, 
made  a  distress  for  rent,  and  sold  the  goods  so  dis- 
trained, and  afterwards  the  outlawry  was  reversed;  it 
was  ruled,  that  the  officer  washable  to  pay  the  pro- 
duce of  the  goods  to  the  landlord,  in  an  action  for 
money  had  and  received''.  But  a  commission  of 
bankrupt  is  not  considered  as  an  execution  within 
this  statute ;  and  as  the  landlord,  on  the  one  hand, 
may  distrain  for  his  whole  rent,  even  after  an  as- 
signment and  sale  by  the  assignees,  before  the  goods 
are  removed  off  the  premises;  so,  on  the  other  hand, 
if  he  suffer  the  goods  to  be  removed,  without  dis- 
training, he  must  in  general  come  in  for  his  rent  pro 
rata  with  the  other  creditors  '.  If  the  sheriff  remove 
the  goods,  without  satisfying  the  landlord,  he  is  li- 
able  to  an  action,  which  may  be  brought  by  the  ex- 
ecutor or  administrator  of  the  landlord  ^ ;  but  in  or- 
der to  maintain  an  action,  there  must  be  a  demand 
made  of  the  rent,  before  the  goods  are  removed ':  Or, 
instead  of  bringing  an  action,  the  landlord  may  move 
the  court,  that  he  may  be  paid  what  is  due  to  him, 
out  of  the  money  levied,  if  sufficient  for  the  purpose, 
or  otherwise  so  much  as  it  will  satisfy '". 

On 

K2  Sir.  787,  1  Id.  97. 

''7T.  R.  259.  mCas.  temfi.   Hardw.   255. 

i  1  Atk.  103,4.  2  Wils.  140.    1   Cromp.  381. 

•^  1  Str.  212.  Willcs,  377.  Barnes,  199.211. 


928  01-   EXEC  U  HON. 

On  the  return- day  of  the  fieri  facias^  the  sheriff 
may  be  called  upon  by  rule,  to  return  the  WTit;  and 
if  he  do  not  return  it,  or  offer  a  reasonable  excuse, 
the  court  will  grant  an  attachment  against  him.  But 
if  the  property  of  the  goods  be  disputed,  which  fre- 
quently happens  on  a  commission  of  bankrupt,  &c. 
the  court,  on  the  suggestion  of  a  reasonable  doubt, 
will  enlarge  the  time  for  the  sheriif 's  making  his  re- 
turn, till  the  right  be  tried  between  the  contending 
parties,  or  one  of  them  has  given  him  a  sufficient 
indemnity.  And  accordingly  in  a  late  case,  the  court, 
upon  the  application  of  the  sheriff,  enlarged  the 
time  for  his  making  a  return  to  a  writ  oS.  fieri  facias  ^ 
upon  suggestion  of  a  reasonable  doubt,  whether  the 
goods  seized  under  the  writ  were  not  covered  by  an 
extent^  afterwards  issued  at  the  suit  of  the  crown  for 
malt-duties,  for  the  purpose  of  inducing  the  plaintiff^ 
to  go  into  the  court  of  Exchequer,  and  there  contest 
the  question  of  right  with  the  crown,  in  a  more  eli- 
gible manner  than  in  this  court ". 

The  returns,  commonly  made  by  the  sheriff  to 
2i  fieri  facias  2iVQ  first,  ?mlla  bona°^  which  is  either 
general,  that  the  defendant  has  no  goods  in  his 
bailiwick,  whereof  he  can  cause  to  be  made  the 
sum  directed  to  be  levied,  or  any  part  thereof;  or 
special,  with  this  addition,  that  the  defendant  is  a 

bencr 

n  7  T.  R.    174.   and  see   I         « Append.    Chap.    XLI.   ^ 
East,  338.  3  Bos.  £^  Pul.  288.      33.  35. 


OF  EXECUTIQN.  ^29 

beneficed  clerk,  having  no  lay  fee  within  his  baili- 
wick''; or,  being  an  executor  or  administrator,  that 
he  has  wasted  the  goods  of  the  testator  or  intestate  "^ ; 
secondly ^  Jie?'i  Jeci,  or  that  die  sheriff  has  caused  to 
be  made,  of  the  defendant's  goods,  the  whole  or  a 
part  of  the  money,  which  he  has  ready  to  be  paid  to 
the  plaintiff;  thirdly,  that  he  has  taken  goods  of  the 
defendant,  to  a  certain  amount,  which  remain  in  his 
hands  for  want  of  buyers  ';  or  fourthly,  that  he  has 
made  his  mandate  to  the  bailiff  of  a  libert}%  who  has 
given  him  no  answer,  or  returned  mdla  bona,  &c  ^ 

If  the  sheriff  return,  on  ?l  fieri  facias y  that  the  de- 
fendant has  no  goods  in  his  bailiwick,  the  plaintiff, 
if  it  be  true,  may  have  an  alias  fieri  facias ",  and  af- 
ter that,  if  necessary,  a  piuries '  into  the  same  county; 
or  he  may  have  a  testatum  fieri  facias  into  a  different 
county,  suggesting  that  the  defendant  has  goods 
there  ^^ :  And  a  testatum  may  be  awarded  into 
Wales y  or  a  county  palatine  ".  In  any  of  these 
writs,  there  may  be  a  clause  of  non  omittas  y ;  com- 
manding the  sheriff,  that  he  do  not  omit,  on  ac- 
count 

p  Append.  Chap. XLI.  §34.  i /(/.  §  44. 

q  Tlies.  Bre-v.  116,  17.  Ap-  v  /rf.  ibi^, 

pend.  Chap.  XLI.  §  36.  w  u.  §  46,  48,  &c. 

r  Append.   Chap.    XLI.    §  J'  Cro.  Jac.  484.  and  see   1 

37,  8cc.  Lev.  256.  29 1 .  T.  Raym,  206. 

^  Id.  %  42,  3.  2  Saund.  193.  R.  H.  19  Jac.  L 

r/rf.  §  38.41.  y  Append.  Chap.  XLL  $  45. 

Vol.  II.  2  M 


930  OF  EXECUTION. 

count  of  any  liberty  in  his  county,  but  that  he  enter 
the  same,  &c.  If  the  return  be  not  true,  the  plaintiff 
may  maintain  an  action  against  the  sheriff  for  a  false 
return.  And  where  the  sheriff  returns  nulla  bona^ 
and  there  is  a  recovery  against  him  for  his  false  return, 
that  vests  no  property  of  the  goods  in  him  or  tlie 
plaintiff;  but  they  remain  in  the  defendant,  and  are 
liable  to  a  subsequent  execution  for  his  debt  ^. 

The  plaintiff  cannot  regularly  sue  out  2i fieri  facias, 
into  a  difFerent  county  from  that  where  the  action  is 
laid,  without  a  testatum ";  nor  a  testatum  without  a 
-^x^ViQM^  fieri  facias  ''.  But  the  award  of  a  testatum 
on  the  roll,  is  sufficient  to  warrant  a  ^my^d^^  into 
a  different  count}^  ";  or  if  a  fieri  facias  be  sued  out 
into  one  county,  when  it  should  have  been  a  testatum, 
without  any  ou.^\y\^  fieri  facias,  and  the  plaintiff  af- 
terwards sue  out  an  oxi^xvi^  fieri  facias,  the  court  will 
permit  the  party  to  amend  the  former,  on  payment 
of  costs  '^;  and  they  will  not  set  aside  a  testatum,  sued 
out  \vithout  an  oxi^msX  fieri  facias  to  warrant  it,  if  the 
plaintiff  afterwards  sue  out  such  QiX\^vi\?\  fieri  facias, 

and 

''^  2  Vern.  239.  sufficient   however,  to   verify 

3  2  Blac.   Rep.  694.  Palter  the  fact  of  an  ov\%\\\zS.  fieri  fa- 

and  Ellhon,   H.  25   Geo.  III.  cias  having  been  auarded,  by 

K.  B.  3  T.  R.  657.  affidavit ;     but     the      plaintiff 

b  3  T.  R.  388.  ought    to     have    the    roll   in 

<=  Barnes,    196,   7.  and    see  court. -Per  O^r.  M.  42  G.  Ill 

Prac.  Reg.  210.  12.    It  is  not  '^  3  T.  R.  657. 


OF  EXECUTION. 


931 


and  get  it  returned  and  filed,  so  as  to  be  able  to  pro- 
duce it  on  shewing  cause  %  though  a  writ  of  error 
has  been  previously  brought  ^.  So  where  the  record 
was  produced  in  court,  on  which  an  original  capias 
ad  satisfaciendum  was  entered,  with  the  sheriff's  re- 
turn thereto,  the  court  permitted  the  plaintiff  to  sue 
out  and  seal  an  original  capias  ad  satisfaciendum^  to 
warrant  a  testatum  into  a  different  county  2.  And  it 
is  said,  that  the  fieri  facias  on  which  the  testatum  is 
founded,  is  returned  of  course  by  the  attornies  them- 
selves, as  originals  are  ^.  In  all  continued  writs,  the 
alias  or  testatum  must  be  tested  the  day  the  former 
was  returnable  ' ;  and  \i2i  fieri  facias  issue  to  the  she- 
riff, returnable  on  a  general  return-day,  and  he  at 
that  day  return  nulla  hona^  a  testatum  fieri  facias  may 
issue  on  the  day  following,  and  execution  thereon 
will  be  good;  for  though,  on  mesne -process,  there 
can  be  no  testatum^  till  the  quarto  die  post^  yet  it  is 
otherwise  in  writs  of  execution,  for  on  these  the  par- 
ty has  no  day  in  court  J. 

If  the  sheriff  return  nulla  bona^  and  that  the  de- 
fendant is  a  beneficed  clerk,  having  no  lay  fee,  there 
goes   a  leijari  facias  to  the  bishop  of  the  diocese 
wherein  the  benefice  is,  commanding  him  to  le- 
vy 

e2   Salk.  589,    90.  Bames,         g  6  T.  R.  450. 

200,201.208,9.11.  3  T.  R.  »' 2  Salk.  590, 
388.    657.  i  Id.  699. 

f  5  T.  R.  272.  j  T,  Jon.  200. 


932  OF   EXECUTION. 

vy  the  sum  recovered,  of  the  ecclesiastical  ^oods  and 
chattels  of  the  defendant ''.  This  writ  is  similar 
to  a  Jieri  facias;  and  the  bishop,  who  is  in  nature 
of  a  temporal  officer  or  ecclesiastical  sheriff,  may 
seize  and  sell  the  profits  of  the  benefice ':  But  he 
must  return  fej'i  feci,  and  not  sequestrari  feci,  upon 
this  writ "".  He  may  also,  like  the  sheriff,  be  cal- 
led on  by  rule  to  return  the  writ;  and  if  he  make 
a  false  return,  will  be  liable  to  an  action  ".  Upon 
this  writ,  the  bishop  or  his  officer  makes  out  a 
sequestration,  directed  to  the  churclwardens,  or 
iipon  a  proper  security,  to  persons  of  the  plaintiff's 
own  appointment,  requiring  them  to  sequester  the 
tithes,  and  other  profits  of  the  benefice  ° ;  which 
sequestration  should  be  forthwith  duly  published, 
by  reading  it  in  church  during  divine  service,  and 
afterwards  at  the  church-door,  and  fixing  a  copy 
tliereon  :  for  where  a  sequestration  was  made  out, 
and  not  published  while  the  writ  was  in  force,  but 
was  stayed  in  the  register's  hands,  by  desire  of  the 
plaintiff's  attorney,  the  court  held,  that  it  had  no 
priority,  as  against  other  sequestrations,  afterwards 
made  out  and  duly  published ;  but  that  if  it  had 
been  published,  the  execution  would  have  taken 

effect, 

k  Gilb.  Exec.  26.  Bac.  Abr.  1  Salk.  320.  1  Ld.  Raym.  265. 

at.  Exec.  360.  Append.  Chap.  S.  C. 
XLI.  §  5 1,  Sec.  o  Burn,  Eccles.  Law,  tit.  Se- 

>  2  Mod.  257,  8.  questration,  3  V.  317.  Append 

^  1  Str.  87.  Chap.  XLI.  §56. 

*  Gilb.  Exec.  26.  and  see 


OF  EXECUTION.  933 

effect,  and  must  have  been  first  satisfied,  notwith- 
standing it  was  then  returnable  ^\  It  is  said,  that 
this  writ  of  sequestration  must  be  renewed  every 
term^;  but  it  seems,  that  if  the  writ  be  laid  and 
executed,  before  the  day  of  the  return,  the  mesne 
profits  may  be  taken  under  it,  after  the  writ  is  re- 
turnable, otherwise  not  ^ 

In  an  action  against  an  executor  or  ad7ninistrator, 
if  the  sheriff  return  nulla  bona  to  the  Jieri  facias, 
the  plaintiff  must  proceed  by  scire  Jieri  inquiry  % 
or  action  of  debt  upon  the  judgment,  suggesting 
a  de'uastaiyit:  but  if  a  devastavit  be  returned  by  the 
sheriff,  the  plaintiff  may  have  execution  immedi- 
ately against  the  defendant,  by  capias  ad  satisfacien- 
dum S  or  feri  facias  de  bonis propriis  ". 

li  fieri  feci  be  returned,  the  plaintiff  may  proceed 
against  the  sheriff  for  the  money,  by  rule  of  court, 
or  action  of  debt  founded  on  his  return ;  or,  though 
no  return  be  made,  an  action  of  debt^  account  or 
assumpsit,  will  still  lie  against  the  sheriff,  or  his 
executors,  for  the  money  levied  ^ :  And  in  such  an 
action,  the  defendant  cannot  plead  the  statute  of  li- 
mitations ; 

V  Legassickev.BishofiofEx-  Chap.  XLII.  §  47. 

eter,  E.  22  Geo.  III.  K.  B.  1  '  Append.    Chap.   XLI.    § 

Cromp.  359.  103,  &c. 

q  1    Cromp.   345.    Wood's  ^  Thcs.  Brev.  46,    7.    122. 

Inst.  608,  9.  125.  Append.  Chap.  XLI.  § 

«■  Burn,  Eccles.  Law,  tit.  Se-  57,  8. 

questration,SY.3l7.  ^  Cro.  Car.  539.    2    Sho\y 

»  Lil.  Ent.    664.     Append.  79.  281.  Gilb.  AVcc.  25, 


934  OF  EXECUTION. 

mitations;  for  though,  till  the  ^vrit  be  returned, 
it  is  not  a  matter  of  record,  yet  it  is  founded  upon 
a  record,  and  has  a  strong  relation  to  it ".  If  a  part 
of  the  money  only  be  levied,  the  plaintiff  may  have 
2i  fieri  facias  for  the  residue"";  and  the  first  writ  must 
be  returned,  before  a  second  execution  can  be  taken 
out;  for  that  must  be  grounded  on  the  first  writ, 
and  recite  that  all  the  money  was  not  levied  thereon : 
But  if  upon  the  first,  all  the  money  had  been  levied, 
the  writ  need  not  have  been  returned,  for  no  further 
process  was  necessary  ^ :  And  if  nothing  be  levied 
on  the  first  writ,  it  need  not  be  recited  in  the  second. 
If  the  sheriff  return,  that  he  has  taken  goods, 
which  remain  in  his  hands  for  want  of  buyers,  the 
plaintiff  may  sue  out  a  writ  of  lienditioni  exponas^ 
reciting  the  former  writ  and  return,  and  comman- 
ding the  sheriff  to  expose  the  goods  to  sale,  and 
have  the  monies  arising  therefrom  in  court,  at  the 
return  of  it  ^  If  goods  are  not  taken  to  the  value 
of  the  whole,  the  plaintiff  may  have  a  'venditioni 
exponas  for  part,  and  2i  fieri  facias  for  the  residue, 
in  the  same  writ  ^ ;  and  it  seems,  that  a  "venditioni 
exponas  may  be  directed  to  the  new  sheriff,  where 

the 

w  2  Show.  79.  ■^  Append.  Chap.  XLI.  §  64. 

''   Append.  Chap.   XLI.   §  Cowp.  406.  but  see  1  Bos.  & 

59,  &c.  Pul.  359. 

y  1  Salk.    318.  Gilb.  Exec.  ^  Thes.  Brev.  305.  Append 

36.  Chap.  XLI.  §  65. 


OF  EXECUTION.  935 

the  old  one  returns,  that  he  has  taken  goods,  which 
remain  in  his  hands  for  want  of  buyers ''.  But  the 
more  usual  way  of  proceeding,  in  such  case,  is  by 
writ  of  distringas  to  the  new  sheriff,  commanding 
him  to  distrain  the  old  one,  till  he  sell  the  goods  % 
&c.  Of  this  writ  there  are  two  sorts;  the  first, 
which  is  the  more  ancient,  commands  the  sheriff, 
to  whom  it  is  directed,  to  distrain  the  late  sheriff,  \ 
so  that  he  expose  the  goods  to  sale  ^,  and  cause 
the  monies  arising  therefrom  to  be  delivered  to  the 
present  sheriff,  in  order  that  such  sheriff  may  have 
those  monies  in  court,  at  the  return  ^ :  The  other 
writ,  which  is  the  most  usual  \  is  to  distrain  the  late 
sheriff,  to  sell  the  goods,  and  have  the  money  in 
court  himself  ^ 

If  the  writ  of  Jieri  facias^  &c.  be  iiTcgular,  the 
defendant  may  move  the  court  to  set  it  aside,  and 
that  the  goods  or  money  levied  may  be  restored  to 
him.  A  third  person,  whose  goods  are  taken  un- 
der it,  may  also  move  the  court,  to  have  them  re- 
stored. But  if  the  right  be  not  clear,  the  court 
will  leave  him  to  his  action  against  the  sheriff;  or 
they  will  sometimes  direct  an  issue  for  trying  it,  and 

retain 

^  2  Saund.  343.  f  6  Mod.  299. 

c  Append.  Chap.  XLI.  §  66,  e  Rast.  164.  Thes.  Brev.  90, 

Sec.  Off.  Brev.  45.  Append.  Chap. 

J  Gilb.  Exec.^X.  XLI.  §  66,  &c.   2  Ld.  Raym, 

=  34Hen.  VI.  p6,  1074,  5.  1  Salk.  323.  S.  C.     ■ 


936'  OF   EXECUTION. 

retain  the  money  in  court,  to  abide  the  event  of  the 
trial. 

Upon  an  erroneous  judgment,  if  there  be  a  regu- 
lar writ,  the  party  may  justify  under  it,  till  the 
judgment  be  reversed;  for  an  erroneous  judgment 
is  the  act  of  the  court '' :  And  the  party  need  not 
set  forth  in  his  plea,  that  the  writ  has  been  retur- 
ned. But  if  the  judgment  or  execution  be  irre- 
gular^ the  party  cannot  justify  under  it,  for  that  is 
a  matter  in  the  privity  of  himself  or  his  attorney: 
And  if  the  sheriff  or  officer,  m  such  case,  join  in 
the  same  plea  with  the  party,  he  forfeits  the  bene- 
fit of  his  defence '.  The  sheriff  or  officer  however 
may  justify  under  an  irregular  judgment,  as  well  as 
an  er-oneous  one;  for  they  are  not  privy  to  the  ir- 
regularity :  And  so  as  the  writ  be  not  void,  it  is  a 
good  justification,  however  irregulai-,  and  the  pur- 
chaser will  gain  a  title  under  the  sheriff;  for  it  would 
be  very  hard,  if  it  should  be  at  the  peril  of  the  pur- 
chaser, \jnd.eY  2i  fieri  facias y  whether  the  proceedings 
were  regular  or  not'^'.  But  a  justification  by  the 
sheriff  or  officer,  under  a  returnable  process,  is  ill, 
without  shewing  a  return  of  it;  and  if  the  plaintiff 
join  with  the  officer,  there  must  be  judgment  against 
both  ^  Where  the  plaintiff  has  execution,  and  the 
money  is  levied  and  paid,  and  the  judgment  is  af- 
terwards reversed,  there  the  party  shall  have  resti- 

tut  ion 

h  1  Str.  509.  k  1  Vez.  195. 

'^  Id.  ibid.  1  2  Str.  1184. 


OF  EXECUTION.  937 

tution  without  a  scire  facias  ;  because  it  appears  on 
the  record  that  the  money  is  paid,  and  there  is  a  cer- 
tainty of  what  was  lost;  otherwise  where  it  was.  le- 
vied, but  not  paid,  for  then  there  must  be  a  scire 
faciasy  suggesting  the  matter  of  fact,  uiz.  the  sum 
levied,  &.c.  But  where  judgment  is  set  aside  after 
execution  for  irregularity,  there  needs  no  scire  facias 
for  restitution  ;  but  if  it  be  not  made,  an  attachment 
shall  be  granted  upon  the  rule,  for  a  contempt  "'. 

When  the  sheriff  has  taken  goods  upon  2iferi  fa- 
cias, to  the  amount  of  the  sum  directed  to  be  le- 
vied, the  defendant  is  discharged,  and  may  plead  it 
in  bar  to  an  action  of  debt,  or  scire  facias,  upon  the 
judgment":  But  where  two  persons  are  jointly  and 
severally  bound,  and  execution  is  had  against  one  of 
them,  and  his  goods  are  seized,  but  not  sold,  this 
cannot  be  pleaded  in  an  action  of  debt  against  the 
odier  obligor ;  because  it  is  no  actual  satisfaction  °. 


After  2i  fieri  facias,  if  the  plaintiff  be  not  satisfied, 
he  may  have  an  elegit  against  the  goods  of  the  de- 
fendant, and  a  moiety  of  his  lands  ■',  or  a  capias  ad 

satisfaciendum 

«  2  Salk.  588.  ^  Id.  ibid.  2  Show.  394. 

n  2  Ld.  Raym.  1072.  1  Salk.  p  Append.  Chap.  XLI.  f 
822.  S.  C.  69. 

Vol.  II.  2N 


93S  OF  EXECUTION. 

satisfaciendum  against  his  person;  or  he  may  sue  out 
either  of  these  writs  in  the  first  instance. 

An  elegit  is  founded  on  the  statute  Westm.  2. 
(13  Ediv.  I.)  c.  18.  by  which  it  is  enacted,  "  that 
"  when  a  debt  is  recovered  or  acknowledged  in 
"  the  king's  court,  or  damages  awarded,  it  shall  be 
"  in  the  election  of  him  who  sues  for  such  debt  or 
*'  damages,  to  have  a  writ  to  the  sheriff,  for  levy- 
"  ing  the  debt  of  the  lands  and  chattels,  or  that  the 
"  sheriff  cleliver  to  him  all  the  chattels  of  the  debt- 
"  or,  (except  his  oxen,  and  beasts  of  the  plough,) 
"  and  a  moiety  of  his  land,  until  the  debt  be  le- 
*'  vied,  by  a  reasonable  price  or  extent;  and  if  he 
"  be  evicted,  he  shall  recover  by  WTit  of  novel  dis- 
"  seisifi,  and  aftenvards  by  writ  of  re-disseisin,  if 
*'  there  be  occasion."  The  writ  we  are  now  speak- 
ing of  lies  against  the  defendant  in  his  life-time,  or 
his  heir  and  tertenants  after  his  death  '^ :  And  it  may 
be  had  against  peers  of  the  realm,  as  well  as  others; 
and  also  against  executors  and  administrators, 
upon  a  de'vasta'oit  returned  ^  But  it  lies  not  against 
an  heir,  till  his  full  age;  and  therefore,  on  a  scire 
facias  brought  against  him,  the  parol  shall  demur, 
because  he  may  have  a  good  plea  to  bar  the  exe- 
cution, which  might  be  mispleaded '.  This  writ 
may  be  sued  out  after  a  year,  without  a  scire  facias, 
upon  awarding  an  elegit  on  the  roll  %  and  continuing 

it 

a  Append.   Chap.    XLI.   §        ^  Gilb.  Exec.  58. 
70.  '  Carth.  283.  Append.  Chap 

'  I  Cromp.  346.  XLI.  §  72.. 


or  EXECUTION,  939 

at  down  by  vkecomes  non  misit  bre'oe;  and  the  plain- 
tiff may  have  elegits  awarded  into  as  many  different 
counties  as  he  pleases,  without  being  under  the  ne- 
cessity of  suing  out  testatums  "*.  But  it  is  said,  that  if 
he  award  an  elegit  into  one  county,  and  extend  the 
lands  upon  that  writ,  and  afterwards  file  it,  he  is  bar- 
red, and  cannot  sue  out  an  elegit  into  another  count}'- '^^. 
Upon  this  writ,  the  sheriff  is  to  impanel  a  jury; 
who  are  to  make  inquiry  of  all  the  goods  and  chat- 
tels of  the  debtor,  and  to  appraise  the  same,  and  also 
to  inquire  as  to  his  lands  and  tenements'''.  The 
goods  and  chattels  being  appraised,  are  to  be  deli- 
vered to  the  plaintiff,  at  the  price  set  upon  them  ^; 
and  in  this  respect,  an  elegit  differs  from  ^.  fieri  fa- 
cias^ upon  which  the  sheriff  cannot  deliver  the 
goods,  though  he  may  sell  them,  to  the  plaintiff  >'. 
If  the  goods  and  chattels  are  sufficient  to  satisfy 
the  plaintiff's  demand,  the  sheriff  ought  not  to  ex- 
tend the  lands',  but  otherwise  he  may  extend 
them:  And  he  may  not  only  extend  a  moiety  of 
the  lands,  properly  so  called,  but  also  of  a  reversion  '', 
or  rent-charge  issuing  out  of  land  '';  and  by  the  29 
Car.  II.  c.  3.  lands,  &c.  held  in  trust  may  be  ex- 
tended, 

»  1  Cromp.  546.  352.    Law  "  Gilb.  Exec.  33. 

of  £xec.  208.  Append.  Chap.  y  1  Ld.   Raym.   346.  Bac. 

XLI.  §  73.  Abr.  tit.  Exec.  352. 

V  1  Cromp.  346.  352.  Law  ^  1    Cromp.   346.    2    Inst 

of  Exec.   287.  but  see  Gilb.  395. 

Exec.  53.  a  Gilb.  Exec.  38. 

»••  Bac.  Abr.  tit.  Exec.  349.  b  Id.  39.  Moor,  32. 


940  OF  EXECUTION. 

tended,  in  the  hands  of  trustees,  for  the  debt  of 
cestui  que  trust.  But  copyhold  lands  are  not  exten- 
dible ^•,  nor  a  rent- seek  '^,  advowson  in  gross  ^'j  or 
glebe  belonging  to  a  parsonage  or  vicarage "".  A 
term  for  years  may  be  either  extended,  or  sold  as 
part  of  the  personalty  f^:  If  it  be  extended,  the 
plaintiff  is  accountable  for  all  the  profits  he  receives 
out  of  the  term,  upon  such  extent;  and  if  he  re- 
ceive the  debt  out  of  such  term,  before  it  expires, 
the  defendant  shall  be  restored  to  the  term  itself '', 
but  otherwise  he  shall  keep  the  term,  and  not  ac- 
count for  the  profits  of  it  '. 

No  notice  is  given  of  executing  an  elegit  K  And  if 
there  be  no  lands,  the  sheriff  need  not  take  or  return 
an  inquisition  '';  but  otherwise  an  inquisition  must  be 
taken  and  returned,  describing  the  lands  with  conve- 
nient certainty  ^;  and  after  it  is  taken,  the  sheriff  must 
deliver  a  moiety  to  the  plaintiff,  by  metes  and  bounds  ^ : 
If  he  do  not,  the  return  is  ill,  and  may  be  quashed  for 
uncertainty  " ;  and  if  the  defendant  be  joint-tenant,  or 
tenant  in  common,  it  ought  to  be  specially  alleged 

in 

c  1   Rol.  Abr.  888.  3  Blac.        J  1  Cromp.  363. 

C^om.  419.  k2Str.  874. 

d  Cro.  Eliz.  656.  '  Moor,  8   Com.  Dig.    tit. 

e  Gilb.  Exec.  39.  Exec.{Q,.  14).  Append.  Chap. 

f/(i.  40.  XLI.  §71. 

SB  Co.  171.  "^Dalt.  Sher.  135. 

^  Gilb.  Exec.  35.  ^-  Garth.  453. 


^  Id. 


oo. 


OF   EXECUTION.  941 

in  the  return  °.  But  it  has  been  adjudged,  that  upon 
an  elegit^  the  sheriff  is  not  bound  to  deliver  a  moiety 
of  each  particular  tenement  and  farm,  but  only  cer- 
tain tenements,  &c.  making  in  value  a  moiety  of  the 
whole  ''.  If  he  deliver  more  than  a  moiety,  the  exe- 
cution is  void ''. 

It  was  formerly  usual  for  the  sheriff  to  deliver  ac- 
tual possession  of  a  moiety  of  the  lands :  But  he  now 
only  delivers  legal  possession,  and  in  order  to  obtain 
actual  possession,  the  plaintiff  must  proceed  by  <?;>rr- 
ment''  \  in  which  he  must  not  only  prove  the  judg- 
ment, and  by  the  judgment-roll,  that  ^xs.  elegit  issued 
and  was  returned,  but  he  must  also  prove  the  WTit  of 
elegit^  by  a  true  copy  thereof,  and  the  inquisition 
thereon;  for  it  is  the  elegit^  and  inquisition  upon  it, 
which  carve  out  the  term,  and  give  the  right  of  entry, 
the  judgment-roll  being  no  more  than  a  memorandum^ 
that  the  elegit  issued  and  was  returned  % 

After  an  elegit^  if  lands  be  duly  extended,  and 
delivered  to  the  plaintiff,  he  cannot  afterwards 
have  any  other  species  of  execution,  unless  in  case 
of  eviction;  when  he  may  proceed,  in  the  metiiod 
pointed  out  by  the  statute  JVestm.  2.  or  if  he  be 
evicted  out  of  all  the  lands,  he  may  sue  out  a  scire 

facias 

o  Hut.  16.  r  2  Eq.  Cas.  Abr.  38 1 .  3  T. 

1' Doug.  472.  R.  295. 

q  2  Salk.  S63, 4. 1  Vent.259.  '^  Gilb.   £vid.     (by    Lojt,) 

S,  C.  10,  1 1 .  Run.  Eject.  330. 


942 


OF  EXECUTION. 


facias  upon  the  statute  32  Hen.  VIII.  c.  5.  to  have 
a  new  writ  of  execution,  for  what  remains  unsatis- 
fied :  But  if  lie  be  evicted  out  of  part  onl}',  or  of  the 
whole  but  for  a  time,  as  by  a  prior  judgment,  so  that 
the  extent  is  still  continuing,  there  is  no  remedy  by 
this  statute  ^  If  the  defendant  has  no  lands,  and  the 
goods  are  not  sufficient  to  satisfy  the  plaintiff,  he  may 
have  a  capias  ad  satisfaciendum  after  an  elegit " :  And 
a  void  elegit  or  inquisition,  being  as  none,  will  not 
prevent  the  plaintiff  from  having  a  new  elegit  with- 
out a  scire  facias^  though  it  be  after  the  year "'. 

A  question  having  arisen,  in  the  court  of  Chan- 
cery, whether,  upon  an  elegit,  the  plaintiff  could 
be  allowed  interest,  beyond  the  penalty  of  a  judg- 
ment, lord  Hardwicke  was  of  opinion,  that  at  law, 
upon  a  judgment  entered  up,  the  penalty  is  the  de- 
bitum  recuperatum,  and  the  stated  damages  between 
the  parties;  but  if  the  creditors  do  not  take  out  an 
execution  against  the  person  of  the  debtor,  or  his 
personal  estate,  but  extend  the  lands  by  elegit, 
which  the  sheriff  does  only  at  the  annual  value, 
and  much  below  the  real,  the  creditor  holds  quous- 
que  debitum  satisfaction  fuerit,  and  at  law  the 
debtor  cannot,  upon  a  writ  ad  computandiim,  in- 
sist upon  the  creditor's  doing  more  than  account 

for 


t  Co.  Lit.  289.  b.  Gilb.  Exec.      1451 .  S.  P. 
sr,  8.  V  Gilb.  Exec.  54. 

a  1   Str.  226.  2   Ld.  Raym. 


OF  EXECUTION.  943 

for  the  extended  value ;  but  if  the  debtor  come  into 
a  court  of  equity  for  reUef,  this  court  will  give  it 
him,  by  obliging  the  creditor  to  account  for  the 
whole  that  he  has  received;  and  as  a  person  who 
comes  for  equity  must  do  equity,  will  direct  the  debt- 
or to  pay  interest  to  the  creditor,  even  though  it 
should  exceed  the  principal :  And  he  said,  he  remem- 
bered very  well,  upon  Serjeant  Whitaker''^  insisting, 
before  Lord  Chancellor  Cowper^  that  this  would  be 
repealing  the  statute  of  Westminster,  his  Lordship 
said,  he  would  not  repeal  the  statute,  but  he  would 
do  complete  justice,  by  letting  the  creditor  carry 
on  the  interest  upon  his  debt,  as  he  was  to  account 
for  the  whole  he  had  received "". 


An  extendi  facias  or  extent "  lies  in  the  following 
cases ;  first,  for  the  debt  of  the  crown;  secondly, 
on  a  statute-merchant  or  statute-staple,  or  recogni- 
sance in  nature  of  a  statute- staple  ;  and  thirdly,  on 
a  judgment  in  an  action  of  debt  against  an  heir,  on 
the  obligation  of  his  ancestor. 

The  king's  debts  are  either  of  record,  or  not  of 
record:  in  either  case,  the  execution  for  them  is  a 
writ  of  extent,  which  is  either  an  immediate  extent  ^, 

or 

w  3  Atk.  517,    18.  and  see  cution    at    the    suit    of   the 

Amb.   520,  1.     1    East,    403.  crown.   1  East,  338.  (c). 

436.  y  Append.  Chap.   XLI.  ^ 

-''  This  is  properly  an   exe-  75,  &c. 


944  OF  EXECUTION. 

or  an  extent  in  aid  of  the  king's  debtor  \  As  to 
debts  of  record,  they  bind  the  lands  of  the  debtor, 
from  the  time  of  his  becoming  in  debt  to  the  king; 
and  an  execution  may  be  taken  out  for  such  debts, 
though  an  elegit  may  have  been  issued  at  the  suit  of 
a  subject  ^ :  And  if  the  king's  debt  be  prior  on  record, 
it  binds  the  lands  of  the  debtor,  into  whose  hands 
soever  they  come ;  because  it  is  in  the  nature  of  an 
original  charge  upon  the  land  itself,  and  therefore 
must  subject  every  one  that  claims  under  it:  But 
if  the  lands  were  aliened  in  the  whole  or  in  part,  as 
by  granting  a  jointure,  before  the  debt  contracted, 
such  alienee  claims  prior  to  the  charge,  and  in  that 
case  the  land  is  not  subject ''. 

As  to  debts  not  of  record,  the  remedy  for  the 
recovery  of  them  is  governed  by  the  statute  33 
He?u  VIII.  c.  39  ^  by  which  it  is  enacted,  that 
"  all  obligations  and  specialties,  which  shall  be 
"  made  for  any  cause  or  causes  touching  or  in  any 
*'  wise  concerning  the  king's  most  royal  majestj', 
"  or  his  heirs,  or  to  his  or  their  use,  commodity 
*'  or  behoof,  shall  be  made  to  his  highness,  and 
"  to  his  heirs,  kings,  in  his  or  their  name  or  names, 
"  by  these  words,  to  the  lord  the  kingy  and  to  none 
"  other  person  or  persons  to  his  use,   and  to  be 

*'  paid 

2  Append.  Chap.  XLI.  §  79.     tit.  Execution,  K. 
^  2  Rol.  Abr.    156,  7.  Gilb.        ^  Id.  ibid. 
fixcheq.    88.   51,     Bar.    Abr,         ^  §  oO. 


li 


OF  EXECUTION.  945 

paid  to  his  highness  by  these  words,  to  be  paid 
to  the  said  lord  the  Hng,  his  heirs  or  executorsy 
with  other  words  used  and  accustomed  in  com- 
mon obligations ;  and  that  all  such  obligations 
and  specialties  shall  be  good  and  effectual  in  the 
law,  to  all  intents  and  purposes,  and  shall  be  of 
the  same  nature,  kind,  quality,  force  and  ef- 
fect, to  all  intents  and  purposes,  as  the  writings 
obligatory  taken  and  acknowledged  according 
to  the  statute  of  the  staple  at  Westminster :  And 
that  all  suits,  process,  judgments,  decrees  and 
executions,  hereafter  to  be  taken,  pursued,  or 
given  for  the  king,  in  any  of  the  king's  courts 
mentioned  in  that  act,  of  or  upon  any  of  the 
same  obligations,  shall  be  of  the  same  or  like 
strength,  force,  effect  and  intent  in  the  law  to 
all  purposes,  only  against  all  and  all  manner 
such  person  and  persons  as  have  been  bound  in 
such  obligations  or  specialties,  as  well  spiritual 
as  temporal,  and  against  their  heirs,  successors 
executors  and  administrators,  and  every  one  of 
them,  and  against  none  other,  as  writings  obli- 
gatory taken  and  acknowledged  according  to  the 
statute  of  the  staple  at  Westminster,  at  any  time 
before  the  making  of  that  act,  had  been  used  to 
be  taken,  exercised  and  executed  against  any 
lay  person  or  persons''." 

"  And  if  any  suit  be  commenced  or  taken,  or 

"  any 

^  §  53. 
Vol.  II.  20 


946  OF  EXECUTION. 

"  any  process  awarded  for  the  king,  for  the  reco- 
"  very  of  any  of  his  debts,  then  the  same  suit  and 
*'  process  shall  be  preferred  before  the  suit  of  any 
"  person  or  persons ;  and  that  the  king,  his  heirs 
"  and  successors,  shall  have  first  execution  against 
^'  any  defendant  or  defendants,  of  and  for  his  said 
"  debts,  before  any  other  person  or  persons,  so 
"  ahvays  that  the  k'mg''s  suit  be  taken  and  com- 
"  menced^  or  process  awarded  for  the  said  debt ^  at 
"  the  king^s  suit,  before  judgment  given  for  the 
*'  said  other  person  or  persons^.'''' 

This  statute  is  not  confined  in  its  operation  to 
bond  debts  only,  but  extends  to  all  debts  and  exe- 
cutions, at  the  suit  of  the  king^.  And  it  is  held 
to  be  restrictive  upon  the  old  prerogative,  and  in- 
troductive  of  anew  law;  for  ita  quod,  so  always 
that  the  king^s  suit,  &.c.  makes  a  condition  prece- 
dent, and  a  limitation :  Hence  therefore,  a  judgment 
and  execution  executed  by  elegit,  before  any  suit 
or  process  commenced  by  the  king,  shall  be  pre- 
ferred to  the  extent  of  the  king,  issuing  on  a  bond 
debt,  bearing  date  before  the  subject's  judgment, 
and  assigned  to  the  king  before  the  subject's  exe- 
cution *-'. 

With  respect  to  persojial  pro]yerty,  the  general 
rule  is,  that  where  the  king  and  a  subject  stand  in 
equal  degree,  and  the  property  of  the  debtor  re- 
mains 

«  §  74.  g  Hard.  23.  but  see  Dyer, 

f  7  Co.  18.  b,  67.  b. 


I 


or  EXECUTION.  947 

mains  unaltered,  the  king's  prerogative  must  pre- 
vail^: Quandojiis  domini  regis  et  subditi  iJisimul 
concurrunt^  jus  regis  prceferri  debet  ^:  and  there- 
fore if  an  extent  at  the  suit  of  the  crown,  be  tested 
before  or  on  the  day  of  delivering  the  subject's 
execution  to  the  sheriff,  the  former  shall  have  the 
preference  "\  So  an  extent  against  the  king's  debt- 
or, tested  after  a  distress  taken  for  rent,  with  notice 
to  the  tenant,  and  appraisement  made,  but  before 
sale,  shall  prevail  against  the  distress  ^  And  as  the 
crown  is  not  bound  by  the  acts  relating  to  bank- 
rupts, not  being  named  in  them,  therefore  an  ex- 
tent served  upon  the  property  of  the  bankrupt, 
will  bind  from  the  teste  of  the  writ,  and  till  actual 
assignment  by  the  commissioners;  but  the  king  is 
bound  by  an  actual  assignment,  because  the  pro- 
perty is  then  absolutely  transferred  to  a  third  per- 
son™. 

But  as  by  the  common  law,  abridged  as  it  is  by 
the  statute  of  frauds,  the  property  of  the  debtor's 
goods  is  bound  by  the  delivery  of  the  writ  to  the 
sheriff,  there  then  remains  no  property  in  the 
debtor,  on  which  the  prerogative  of  the  crown 
can  attach":  And  therefore  if  goods  be  taken  in 
execution,  on  2ifieri facias  against  the  king's  debtor, 

and 

I»4T.  R.  411.                        •  112.  2  Vcz.  288.  S.  C. 

i  9  Co.  129. b.  m  W.  Jon.  202.  Bumb.  202- 

k  Id.  ibid.  2  Show.  Rep.  480. 

'  Biinb.  42,  3.  569.  Parker,  "  4  T.  R.  41 1. 


948 


OF  EXECUTION. 


and  before  they  are  sold,  an  extent  issues  at  the 
king's  suit,  grounded  on  a  bond  debt,  and  tested 
after  the  delivery  of  tht  Jieri  facias  to  the  sheriff, 
these  goods  cannot  be  taken  upon  the  extent". 
But  process  sued  out  by  the  crown  against  a  de- 
fendant to  recover  penalties,  upon  which  judgment 
for  the  crown  is  afterwards  obtained,  entitles  the 
king's  execution  to  have  priority,  within  the  sta- 
tute 33  Hen.  VIII.  c.  39.  §  74.  before  the  execu- 
tion of  a  subject,  issued  on  a  judgment  recovered 
against  the  same  defendant  prior  to  the  king's 
judgment,  but  subsequent  to  the  commencement 
of  the  king's  process;  the  king's  writ  of  execu- 
tion having  been  delivered  to  the  sheriff,  before  the 
actual  sale  of  the  defendant's  goods  under  the 
plaintiff's  execution ^ 

Immediate  extents  take  place  among  them- 
selves, according  to  the  teste 'i;  And  it  is  a  rule, 
that  an  extent  cannot  be  ante-dated,  but  must  bear 
teste  on  the  day  it  issues,  though  it  be  out  of  term ; 
for  it  issues,  out  of  the  equity  side  of  the  Exchequer, 
Vv^hich  is  always  open^  An  extent  in  aid  is  a  writ 
issued  at  the  instance  of  the  king's  debtor,  for  the 
recovery  of  his  own  debt^:  but  this  being  of  an  in- 
ferior 


o  3  Mod.  236.  Comb.  123. 
Parker,  262.  Com.  Dig.  tit. 
Debt^  G.  8.  Uppom  v.  Sum- 
ner, 2  Blac.  Rep.  1251.  1296. 
4.  T.  R.  402.  but  see  2  Rol. 
Rep.  295.  Comb.  452.  2 
ShoAv.  481.  Bunb.   8.   1   Bur. 


p  1  East,  338. 

1  Parker,  28 1.  and  see  Gilb. 
Excheq.  167,  &c. 

r  2  Str.  749.  Gilb.  Rep. 
222.  Bunb.  164.  S.  C. 

s  Append.  Chap.  XLI.  C 
79. 


OF   EXECUTION.  949 

ferior  nature,  is  postponed  to  an  immediate  ex- 
tent ^ 

On  a  statute-merchant,  the  first  process  after 
it  was  forfeited,  and  certified  into  chancery,  was 
a  writ  of  capias  si  iaicus,  directed  to  the  sheriff, 
commanding  him  to  take  the  body  of  the  conusor, 
if  a  layman,  to  satisfy  the  debf".  And  if  the  she- 
riff" returned  upon  this  writ,  that  the  party  was 
dead,  or  not  found  in  his  bailiwick,  a  writ  issued 
to  extend  the  lands",  which  might  be  made  re- 
turnable in  either  bench;  and  the  sheriff"  might 
thereupon  deliver  the  lands,  &:c.  to  the  conusee, 
upon  a  reasonable  extent,  without  the  delay  or 
charge  of  a  liber-ate^''.  If  the  conusor  was  a  clerk% 
the  sheriff"  was  directed  to  levy  the  debt  of  his 
moveable  goods  and  chattels''. 

On  a  statute -staple,  or  recognisance  in  nature  of 
a  statute -staple,  if  the  conusor  cannot  be  found 
within  the  staple,  i^or  his  goods  to  the  value  of 
the  debt,  the  first  process,  after  the  certificate 
under  seal  in  chancery,  is  a  writ  in  nature  of  an 
extent,  to  take  body,  lands  and  goods,  all  in  one 
writ;  in  which  respect  it  is  preferable  to  the  sta- 
tute-merchant, as  being  a  much  speedier  remedy  y. 

This 

t  Parker,  281,  2.  w  p.  N.  B.  130.  A.  1  Vent. 

«i  F.   N.   B.   130.  Append.     41. 
Chap.  XLI.  §81.  xF.  N.  B.    131.  Append. 

'^F.  N.   B.   130.   A.    Ap-     Chap.  XLI.  §  83. 
pend.  Chap.  XLI.  §  82.  y  2   Bac.   Abr.    334.     Ap- 

pend. Chap.  XLI.  §  84. 


950  OF  EXECUTION. 

This  writ  is  returnable  in  chancery ;  and  the  same 
sort  of  proceedings  are  had  under  it,  for  extending 
the  lands,  &c.  as  upon  an  elegit^:  But  the  sherift' 
after  the  extent,  cannot  deliver  the  lands,  &C.  to 
the  conusee,  but  must  seize  them  into  the  king's 
hands ;  and  in  order  to  get  possession  of  them,  the 
conusee  must  sue  out  a  liberate^  which  is  a  writ  is- 
suing out  of  chancery,  reciting  the  former  writ  and 
return,  and  commanding  the  sheriff  to  deliver  to 
the  conusee  all  the  lands,  tenements  and  chattels, 
by  him  taken  into  the  king's  hands,  if  the  conusee 
will  have  them,  by  the  extent  and  appraisement 
made  thereof,  until  he  shall  be  satisfied  his  debt'. 
Upon  this  writ,  the  sheriff  cannot  turn  the  tertenant 
out  of  possession,  as  upon  an  habere  facias  posses- 
sionem ;  but  is  only  to  deliver  the  legal  possession, 
as  upon  an  elegit^  and  in  order  to  obtain  the  actual 
possession,  the  conusee  must  proceed  by  eject- 
ment''. 

By  the  common  law,  after  a  full  and  perfect  exe- 
cution had  by  extent,  returned  and  entered  of  re- 
cord, the  conusee  could  have  no  re-extent  on  the 
effects  of  the  conusor,  (because  there  was  once 
satisfaction  given  to  the  creditor  on  record,)  though 
the  lands  had  been  recovered  from  him,  before  he 
had  levied  the  debt  out  of  them''.  But  by  the  sta- 
tute 

^- ./fn^f,  939.  *>  1   Vent.    41.   Ante^    941. 

ap.  N.  B.    132.    I  Lutw.  c  Co.  Lit.  290.  a.  Bac.  Abr. 

429.  Append.  Chap.  XLI.  §  tit.  Execution^  (B.  6). 
85. 


or  EXECUTION.  951 

tute  32  Hen.  VIII.  c.  5.  it  is  provided,  that  "  if 
after  any  lands,  tenements  or  hereditaments,  be 
had  and  deHvered  in  execution,  upon  a  just  and 
lawful  title,  wherewithal  the  said  lands,  &c.  were 
liable,  tied  and  bound,  at  such  time  as  they  were 
delivered  and  taken  into  execution,  shall  be  re- 
covered, divested,  taken,  or  evicted  out  of  or  from 
the  possession  of  any  such  person  and  persons  as 
have  and  hold  the  same  in  execution,  without  any 
fraud,  deceit,  covin,  collusion,  or  other  default  of 
the  said  tenant  or  tenants  by  execution,  before 
such  time  as  the  said  tenants  by  execution,  their 
executors  or  assigns,  shall  have  fully  levied  their 
whole  debt  and  damages,  for  the  which  the  said 
.lands,  &c.  were  delivered  and  taken  in  execution ; 
then  every  such  recoveror,  obligee,  and  recognizee, 
shall  have  a  scire  facias  out  of  the  same  court, 
from  whence  the  former  execution  did  proceed, 
against  such  person  or  persons  as  the  former  exe- 
cution was  pursued,  their  heirs,  executors  or  as- 
signs, to  have  execution  of  other  lands,  &c.  liable 
to  be  taken  in  execution,  for  the  residue  of  the  debt 
or  damages." 

This  statute,  by  a  favourable  construction,  was 
extended  to  the  executors,  administrators  and  as- 
signs of  the  recoveror*^,  &c.;  and  to  executions 
issuing  out  of  any  court,  where  the  record  is  re- 
moved by  writ  of  error,  and  affirmed  ^•  But  the 
statute,  we  have  seen,  did  not  extend  to  a  partial 

e\'iction. 

^  Co.  Lit.  290.  a.  '>  III,  ibid. 


952  OF  ExfictrtioN, 

eviction^.  Bj  a  subsequent  statute  ^  however, 
which  wais  made  for  supplying  some  defects  in  the 
statute  23  Hen.  VIII.  c.  6.  it  is  enacted,  that  "  in 
case  it  shall,  at  any  time  or  times,  before  or  after 
the  filing  or  returning  of  any  liberate  or  liberates^ 
sued  out  on  any  extent  or  extents,  upon  a  re- 
cognisance in  the  nature  of  a  statute -staple, 
be  made  appear  to  the  court  of  Chancery,  that 
sufficient  has  not  been  extended  and  levied, 
or  sufficiently  extended  and  levied,  to  sa- 
tisfy such  recognisance ;  or  that  any  omission, 
error  or  mistake  has  happened,  in  making,  suing 
out,  executing  or  returning  any  of  the  said 
writs,  or  any  process  thereupon;  or  it  should 
happen,  that  any  lands,  tenements  or  heredita- 
ments shall  be  evicted  from  any  person  or  per- 
sons, who  shall  have  extended  the  same,  by 
virtue  of  any  such  writ  or  process  as  aforesaid ; 
that  then,  and  in  every  such  case,  the  said  court 
of  Chancer}'  shall  and  may  award  one  or  more 
re-extent  or  re-extents,  for  the  satisfying  the 
same  as  aforesaid,  and  that  writs  of  liberate  or 
liberates  may  be  sued  out  thereupon." 
We  have  before  seen,  that  in  debt  against  an  heir, 
on  the  obligation  of  his  ancestor,  the  judgment  for 
the  plaintiff  is  general^  for  the  debt  and  damages, 
or  special^  directing  them  to  be  levied  of  the  lands 
descended^  On  a  general  judgment,  the  execu- 
tion 

i  Antey9i2.  ^^  Jnce,   854.   and   see 

2  8  Geo.  I.  c.  25.  §  4.  2  Wms.  Saund.  7.  (4.) 


OF   EXECUTION.  953 

tion  .may  be  general  also,  against  the  defendant, 
his  goods  and  chattels,  or  a  moiety  of  his  lands, 
by  capias  ad  satisfaciendum^  fieri  facias^  or  elegit ': 
But  where  the  judgment  is  special,  the  execution 
is  so  likewise,  by  a  writ  in  nature  of  an  extent,  to 
levy  the  debt  and  damages,  of  all  the  lands  de- 
scended''. And  it  seems  that  on  a  general  judg- 
ment, although  the  plaintiff  may  have  execution 
by  elegit  of  a  moiety  of  all  the  heir's  lands,  yet  may 
he  also  at  his  election  surmise,  that  the  heir  hath 
certain  lands  by  descent,  and  pray  to  have  execu- 
tion of  the  whole  of  them ' :  For  if  the  plaintiff  had 
not  this  election,  he  might  be  a  loser  by  the  gene- 
ral writ  of  elegit,  upon  which  he  could  have  only 
a  moiety  in  execution,  inasmuch  as  the  heir  might 
not  have  any  other  lands  except  those  descended  '". 


A  capias  ad  satisfaciendum  lay,  at  common  law, 
in  actions  of  trespass  vi  et  aj-jnis  only,  but  has  since 
been  given  in  other  actions,  by  a  variety  of  sta- 
tutes "  :  And,  where  the  defendant  is  at  large,  it 
commands  the  sheriff,   or  other  officer  to  whom  it 

is 

i  2   Rol.   Abr.  71.  and   see  i  Append.  Chap.  XLI.  §  87. 

Vin.  Abr.  til.  Heir,  (D).  Bac.  °'  2  Rol.  Abr.  72.  Bac.  Abr. 

Ahr.  tit.  Heir  ix.jinces(or,(ti).  tit.   Heir  he.  Ancestor,  (H).   3 

2  Wms.  Saund.  7.  (4.)  Wms.  Saund.  7.  ('4.) 

k  Id.  ibid.   Off.  Brev.  83,  4.  "  Hob.  56. 
Append.  Chap.  XLI.  §  86. 

Vol.  II.  2P 


954  OF  EXECUTION. 

is  directed,  to  take  the  defendant,  and  him  safely 
keep,  so  that  he  may  have  his  body  in  court  on  the 
return-day,  to  satisfy  the  plaintiff".  Where  the  de- 
fendant is  already  in  custody,  there  is  no  occasion 
for  this  writ;  but  if  the  plaintiff  would  proceed 
against  his  body,  he  must  charge  him  in  execution, 
as  directed  in  a  former  chapter  p. 

This  writ  lies  after  judgment,  in  every  instance 
where  the  defendant  was  subject  to  a  capias  before ''f 
and  it  may  be  taken  out  against  the  defendant, 
sued  by  a  wrong  name,  if  he  has  omitted  to  take 
advantage  of  the  misnomer "" :  but  it  lies  not 
against  Peers,  or  members  of  the  House  of  Com- 
mons, except  upon  a  statute- merchant  or  sta- 
tute-staple ' ;  nor  against  executors  or  admini- 
strators, unless  a  devastavit  be  returned  ^  An 
infant  seems  to  be  liable  to  this  process  " ;  and  it 
may  be  taken  out  against  bail,  without  any  pre- 
vious Jieri  Jacias,  or  return  of  nulla  bona''.  In  an 
action  against  husband  and  wife,  they  may  both 
betaken  in  execution;  and  the  wife  shall  not  be 
discharged,  unless  it  appear  that  there  is  fraud  and 

collusion,. 

"  Append.   Chap.  XLI.    §        '^  1  Cromp.  345. 
iBf  &c.  t  3  Blac.  Com.  414. 

p  Chap.  XVI.  "i  2  Str.  1 2 1 7.  and  see  I  Bos. 

q  3  Co.  12.  5c  Pul.  480. 

f  2  Str.  1218.  ^  2  ou.  822.  1139. 


II 


OF  EXECUTION.  955 

icoUusion,  between  the  plaintiff  and  her  husband, 
to  keep  her  in  prison '''. 

In  point  of  form,  the  capias  ad  satisfaciendum 
must  pursue  the  judgment :  therefore  on  a  judg- 
ment against  several  defendants,  it  must  include 
them  all ''.  And  if  part  of  the  demand  has  been  al- 
ready levied  \ii\ditr2ijie7'i facias,  the  capias  ad  satis - 
Jaciendum  is  only  for  the  residue  ^.  This  writ  must 
be  signed,  as  well  as  sealed  ^ ;  and  it  must  be  tested 
and  returnable  in  term-time,  in  like  manner  as  the 
fieri  facias  *.  It  was  formerly  necessary  that  there 
should  h^  fifteen  days  at  least  between  the  teste  and 
return  oit\\G fieri  facias  and  capias  ad  satisfaciendum, 
by  original:  but  as  that  occasioned  great  delay,  it 
was  enacted  by  the  statute  13  Car.  II.  stat.  2.  c.  2. 
^  6.  that  "  in  all  actions  of  debt,  and  other  per- 
*'  sonal  actions,  and  also  in  all  actions  oi  ejectmetit, 
*'  depending  by  original  writ  in  the  courts  of  King's 
"  Bench  and  Common  Pleas,  after  any  judgment 
"  obtained  therein,  there  need  not  be  fifteen  days 
"  between  the  teste  and  return  of  any  writ  oi fieri 
*■'■  facias  or  capias  ad  satisfaciendum;  nor  shall 
**  the  want  thereof  be  assigned  for  error."  This 
statute  however  does  not  extend  to  any  writ  of 
oapias  ad  satisfaciendum^  whereon  a  writ  of  exigent 

after 

^»2Str.  1167.  1237.  iWils.  v  Append.    Chap.    XLI.   § 

149.    Say.    Rep.    149.     jinte,  101,  &c. 

174.  ^  R.  E.  1659. 

«  6  T.  R.  526,  7.  >  Ante,  913,  14, 


956  OF   EXECUTION. 

after  judgment  is  to  be  awarded;  nor  to  any  capias 
ad  satisfaciendum  against  the  defendant,  in  order  to 
make  his  bail  Hable.  For  the  purpose  of  charging 
the  bail,  there  ought  to  be  eight  days  between  the 
teste  and  return  by  bill^,  and  fifteen  by  original'^; 
but  a  capias  ad  satisfaciendum  returnable  out  of 
term,  is  not  void  as  against  the  bail,  though  it  may 
be  set  aside  by  the  principal  on  motion,  for  irregu- 
larity ^ :  and  there  may  be  an  intervening  term, 
between  the.  teste  and  return  of  this  writ  ^  If  the 
capias  ad  satisfaciendum  be  informal,  it  may  be 
amended,  in  like  manner  as  the  feri  facias^. 

The  common  returns  to  a  writ  of  capias  ad  satis- 
faciendum are,  that  the  sheriff  has  taken  the  de- 
fendant, whose  body  he  has  ready  ^;  or  that  the  de- 
fendant is  not  found  in  his  bailiwick  ^.  On  the 
latter  return,  the  plaintiff  may  sue  out  an  alias 
capias'  into  the  same,  or  a  testatum^  into  a  differ- 
ent county ;  or  he  may  have  a  non  omittas  capias 
ad  satisfaciendum  into  either':  And  as  the  defendant 
can  only  be  once  taken,  it  seems  there  may  be  se- 
veral 

b  2  Salk.  602.  %  Append.   Chap.   XLI.   § 

6  13  Car.  II.  c.  2.  §6.  92. 

^  2  Bur.  1188.  ^  Id.  §  93. 

e  2  Salk.  700.  2  Ld.  Raym.  i  Id.  §  95. 

775.  S.  C.  k  Id.  §  97,  &c. 

f  2  Blac.  Rep.  836.  2  T.  R.  1  Id.  §  96. 
757.  5T.H.577.  6  T.  R.  450. 


OF   EXECUTION.  957 

veral  writs  running  against  him,  at  the  same  time, 
in  different  counties  :  Or,  instead  of  suing  out  an 
alias  or  testatum^  the  plaintiff  may,  if  the  action  was 
commenced  by  original  writ,  proceed  at  once  to 
outlaw  the  defendant,  by  suing  out  an  exigi  facias  "", 
and  process  of  outlawry. 

The  defendant  being  taken  upon  a  capias  ad  sa- 
tisfaciendum^ if  he  do  not  satisfy  the  plaintiff,  ei- 
ther remains  in  custody  of  the  sheriff,  who  may 
carry  him  immediately  to  the  county-gaol",  oris 
removed  bv  habeas  corpus  to  the  king's-bench  pri- 
son. In  either  case,  the  execution  is  considered, 
quoad  him,  as  a  satisfaction  of  the  debt  °:  There- 
fore a  judgment  creditor,  who  has  taken  his  debtor 
in  execution,  cannot  afterwards  sue  out  a  com- 
mission of  bankrupt  against  him  upon  the  same 
debt ''.  And  if  the  plaintiff,  having  the  defendant 
in  execution,  consent  to  his  discharge,  though  it 
be  on  terms  which  are  not  afterwards  complied 
with  '*,  or  upon  giving  a  fresh  security,  which  af- 
terwards becomes  ineffectual  "■,  the  plaintiff  cannot 
resort  to  the  judgment  again,  or  charge  the  defen- 
dant's 

■»  Append.   Chap.   XLI.   §  a    commission    of    bankrupt 

106.  having     since   been  sued    out 

n  4  T.  R.  555.    Ante,    203.  against   him  by    the    plaintiff. 

o  Hob.  59.  1  Bos.  &  Pul.  302. 

P  8    T.   R.    123.     But    the  ^  4   Bur.    2482.      6    T.   R 

court   has  no   power   to    dis-  526,  7.  7  T.  R.  420. 

charge  the  defendant  out  of  »"  i  f.  R.  556. 
execution,  on  the  ground  of 


958  OF  EXECUTION. 

dant's  person  in  execution ;  even  though  he  were 
discharged  the  first  time  by  the  plaintiff's  consent, 
upon  an  express  undertaking  that  he  should  be  li- 
able  to  be  taken  in  execution  again,  if  he  failed  to 
comply  with  the  terms  agreed  on  *.  But  a  capias 
ad  satisfaciendum  is  no  actual  satisfaction,  so  as  to 
bar  the  plaintiff  from  taking  out  execution  against 
other  persons,  liable  to  the  same  debt  or  damages '; 
though  if  the  plaintiff  consent  to  discharge  one  of 
several  defendants,  taken  on  a  joint  capias  ad  sa- 
tisfaciendum, he  cannot  afterwards  retake  him,  or 
take  any  of  the  other  defendants  ". 

It  was  formerly  hoiden,  that  if  a  person  taken 
on  a  capias  ad  satisfaciendum  died  in  execution,  the 
plaintiff  had  no  further  remedy;  because  he  had 
determined  his  choice,  by  this  kind  of  execution, 
which,  affecting  a  man's  liberty,  is  esteemed  the 
highest  and  most  rigid  in  the  law  ^.  But  now,  by 
the  statute  21  Jac.  I.  c.  24.  reciting,  that  foras- 
much as  daily  experience  doth  manifest,  that  divers 
persons  of  sufficiency  in  real  and  personal  estate, 
minding  to  deceive  others  of  their  just  debts,  for 
which  they  stood  charged  in  execution,  have  obsti- 
nately and  wilfully  chosen  rather  to  live  and  die  in 
prison,  than  to  make  any  satisfaction  according  to 

their 

s  2  East,  243,  Barnes,  205.        "  6  T.  R.  525. 

^  Hob.  59.  ^  Hob.  52.  6  T.  R.  52'6. 


or  EXECUTION.  959 

their  abilities ;  to  prevent  which  deceit,  and  for 
the  avoiding  of  such  doubts  and  questions,  it  is 
declared,  explained  and  enacted,  "  that  the  par- 
"  ty  or  parties  at  whose  suit,  or  to  whom  any  per- 
"  son  shall  stand  charged  in  execution,  for  any 
"  debt  or  damages  recovered,  his  or  their  execu- 
"  tors  or  administrators,  may,  after  the  death  of 
*'  the  person  so  charged  and  dying  in  execution, 
"  lawfully  sue  forth  and  have  new  execution,  against 
"  the  lands  and  tenements,  goods  and  chattels,  or 
"  any  of  them,  of  the  person  so  deceased,  in  such 
*'  manner  and  form,  to  all  intents  and  purposes, 
"  as  he  or  they  or  any  of  them  might  have  had,  by 
"  the  laws  and  statutes  of  this  realm,  if  such  per- 
"  son  so  deceased  had  never  been  taken  or  charged 
**  in  execution." 

"  Provided,  that  this  act  shall  not  extend  to 
"  give  liberty  to  any  person  or  persons,  their  exe- 
"  cutors  or  administrators,  at  whose  suit  or  suits 
"  any  such  party  shall  be  and  die  in  execution,  to 
"  have  or  take  any  new  execution,  against  any 
'*  lands,  tenements  or  hereditaments  of  such  party 
"  so  dying  in  execution,  which  shall  at  any  time 
*'  after  the  said  judgment  or  judgments,  be  by  him 
"  sold  bondjide^  for  the  payment  of  any  of  his  credi- 
•'  tors,  and  the  money  which  shall  be  paid  for  the 
*'  lands  so  sold,  either  paid  or  secured  to  be  paid  to 
•'  anyof  his  creditors,  with  their  privity  and  consent, 

''in 


960  OF   EXECUTION. 

■^^  in  discharge  of  his  or  their  due  debts,  or  of  some 
^'  part  thereof." 

If  a  party  taken  on  a  capias  ad  satisfaciendum 
escape  or  be  rescued,  though  the  sheriff  is  hereby- 
liable,  because  he  ought  to  have  taken  the  posse 
comitatus^  yet  the  plaintiff  may  sue  out  a  new 
execution  ;  and  shall  not  be  compelled  to  take  his 
remedy  against  the  sheriff,  who  may  be  dead  or 
insolvent  "' :  And  if  the  defendant  escape  from  the 
king's-bench  or  fleet  prison,  the  plaintiff,  on  appli- 
cation to  a  judge,  may  have  an  escape- warrant,  in 
order  to  retake  him,  which  shall  be  in  force 
throughout  England  ". 

By  the  common  law,  a  prisoner  in  execution 
was  to  be  kept  in  salvd  et  arcta  ciistodid^  till  he  sa- 
tisfied the  plaintiff.  The  rigor  of  imprisonment 
however  is  now  considerably  abated,  by  his  being 
allowed,  on  giving  security  to  the  marshal,  the  be- 
nefit of  the  rules  of  the  king's-bench  prison,  or  of 
living  within  certain  limits  ''  out  of  its  walls.  This 
benefit  may  be  ha.d  by  one  in  custody  on  an  excom- 
municato capiendo  "■;  but  it  is  never  granted  to  a  pri- 
soner 

^^  2    Bac.    Abr.    240.   244.  R.  583.R.E.   35  Geo.  III.  6 

,355.  T.  R.  305.  R.  T.  36  Geo.  III. 

X  Stat.  1  Ann.  c.  6.  6  T.  R.  778. 

y  For  the  limits  o{  the.  rides  ^  1    Str.  413.  and    for   the 

of    the    king's-bench    prison,  nature  of  this  writ,  see  7  T. 

see  R.  E.  30  Geo.  III.  3  T.  R.  153. 


I 


OF  EXECUTION.  961 

sbner  in  execution  on  a  criminal  account  ^,  or  for  a 
contempt  ^. 

A  prisoner  also,  whether  he  be  detained  in  cus- 
tody on  mesne  process  or  in  execution,  may  on  pe- 
tition to  the  court,  have  day-rides  allowed  him,  or 
the  liberty  of  going  out  of  the  prison  or  its  rules, 
for  transacting  his  business,  in  term-time.  The  pe- 
tition for  this  purpose  must  be  signed  by  the  pri- 
soner, before  he  goes  at  large  ^ ;  and  formerly,  a 
day-rule  might  have  been  obtained  in  this  court^ 
every  day  during  the  term,  as  is  still  the  practice  in 
the  Common  Pleas  :  But  this  indulgence  having 
been  abused,  a  rule  of  court  was  made,  that  "  no 
"  prisoner  in  the  king's-bench  prison,  or  within 
"  the  rules  thereof,  shall  have,  or  be  entitled  to 
"  have,  day-rules,  above  three  days  in  each  term ; 
"  and  every  such  prisoner,  having  a  day-rule,  shall 
*'  return  within  the  walls  or  rules  of  the  said  pri- 
"  son,  at  or  before  nine  o'clock  in  the  evening  of 
*'  the  day  for  which  such  rule  shall  be  granted  '*.'* 
Still  however  it  was  open  to  a  prisoner,  on  a  special 
case,  to  obtain  from  the  court  more  days  than  were 
allowed  by  the  rule ;  as  where  his  attendance  was 
wanted  by  a  master  in  chancery :  but  when  that 
happened,  they  would  restrain  this  indulgence  to 
such  days  as  the  master  should  certify  to  be  ne- 
cessary. 

»  1  Str.  196.  2  Str.  845.  d  R.  £.  30  Geo.  III.    3  T. 

»»2Str.  817.  R.  584. 

c  1  Str.  503. 

Vol.  II.  2Q 


06^2  OP  EXECUTION. 

cessary ''.  And  now,  by  a  late  rule  of  court  ^,  "  not-. 
*'  withstanding  the  general  rule  before  mentioned., 
"  if  any  prisoner  in  the  king's-bench  prison  shall 
"  state  by  affidavit  any  special  cause,  to  the  satis- 
"  faction  of  the  court,  for  having  an  additional  day- 
"  rule  or  day-rules,  beyond  those  allowed  by  the 
"  aforesaid  rule,  such  additional  rule  or  rules  shall 
''  be  granted  accordingly,  for  any  day  or  days  en- 
"  suing  such  application." 

Besides  these  indulgences,  acts  are  occasionally 
passed,  for  the  relief  of  insolvent  debtors  ^ :  And 
towards  the  end  of  the  last  reign,  some  lasting  pro- 
visions were  made  for  their  relief  against  impri- 
sonment, by  the  statute  32  Geo.  II.  c.  28.  §  13. 
which  (originating  in  the  House  of  Lords)  is  called 
the  Lords'*  act.  By  this  statute,  "  if  any  person 
"  shall  be  charged  in  execution,  for  any  sum  of 
"  money  not  exceeding  100/.  (since  extended  to 
i200/.  by  the  26  Geo.  III.  c.  44.  and  to  300/.  by 
the  33  Geo.  III.  c.  5.  which  is  made  perpetual  by  the 
39  Geo.  III.  c.  50.)  "  and  shall  be  minded  to  deli- 
*'  ver  up  to  his  creditors,  all  his  estate  and  effects, 
*'  in  satisfaction  of  his  debts,  he  may,  in  order  to 

*'  entitle 

e  Per   Lord    Kenyon,    E.    36  366.  399.    7  T.  R.  305.   8 

Geo.  III.  T.  R.  49.    1  Bos.  &  Pu! 

fR.M.    37  Geo.   III.    7  T.  477  :  on  the  insolvent  act  of 

R.  82.  37  Geo.  III.  G.  112.  see  8 

e    For      determinations     on  T.  R.  424  :  and  on  the  last 

the  insolvent  act  of  34  Geo.  III.  insolvent  act,  of  4 1  Geo.  Ill 

c.   69.     see     6   T.   R.    28.76.  c.  70.  see  2  East,  148.  257. 


OF  EXECUTION.  963 

"  entitle  himself  to  the  benefit  of  the  above  acts, 
*'  before  the  end  of  the  first  term  next  after  he  shall 
*'  be  charged  in  execution,  exhibit  a  petition  to  any 
"  court  of  law,  from  whence  the  process  issued, 
"  upon  which  he  was  taken  and  charged  in  execu- 
"  tion;  or  to  the  court  into  which  he  shall  be  re- 
"  moved  by  habeas  corpus,  or  charged  in  custody; 
"  certifying  the  cause  of  his  imprisonment,  and 
"  setting  forth  a  just  and  true  account  of  all  the 
"  real  and  personal  estate,  which  he,  or  any  per- 
"  sons  in  trust  for  him,  was  or  were  entitled  to,  at 
"  the  time  of  his  so  petitioning,  and  also  at  the  time 
**  of  his  first  imprisonment,  and  of  all  incumbrances 
*'  and  charges  (if  any)  aifecting  the  same,  andlike- 
"  wise  a  just  and  true  account  of  all  securities, 
*'  deeds,  evidences,  writings,  &c.  concerning  the 
*'  same,  and  the  names  and  places  of  abode  of  the 
*'  witnesses." 

The  humane  provisions  of  the  Lords'  act  v/ere 
-jendered  as  beneficial  as  possible,  by  the  liberality 
of  the  judges,  who  construed  it  to  extend  to  pri- 
soners in  custody  upon  an  attach?ne?;^,  for  the  non- 
performance of  an  award'',  or  non-payment  of 
costs  ',  &.C ;  which  construction  has  been  recogni- 
sed by  the  statute  33  Geo.  III.  c.  5.  §  4.  whereby, 

after 


1  Bos.  8c  Pul 


h  1  T.  R.  266. 

T.  R.  756. 

i  Cowp.   136,    1    T.    R. 

336. 

)6,    4T.  R.   .317.  809.  7 

964  OF  EXECUTION. 

q^fter  reciting  that  persons  are  often  committed  on 
attachments,  for  not  paying  money  awarded,  under 
submissions  to  arbitration  by  or  made  rules  of  court, 
and  likewise  for  not  paying  costs,  duly  and  regu- 
larly taxed  and  allowed,  after  proper  demands  made 
for  that  purpose,  and  also  upon  writs  of  excommu- 
nicato capiendo,  or  other  process  for  or  grounded 
on  the  non-payment  of  costs  or  expences,  in  causes 
or  proceedings  in  ecclesiastical  courts ;  it  is  decla- 
red and  enacted,  that  *'  all  such  persons  are  and 
*'  shall  be  entitled  to  the  benefit  of  this  act,  and 
"  subject  to  the  same  terms  and  conditions  as  are 
"  therein  expressed  and  declared,  with  respect  to 
"  prisoners  for  debt  only."  And  it  is  no  objection 
to  a  prisoner  being  discharged  under  the  Lords' 
act,  that  his  creditor  is  dead"".  But  the  defendant 
in  a  qui  tarn  action  is  not  entitled  to  the  benefit  of 
that  act  ^  And  a  prisoner  who  is  taken  in  execution 
for  more  than  300/.  and  afterwards  reduces  his  debt 
below  that  sum,  is  not  entitled  to  be  discharged 
under  the  above  act,  in  the  next  term  after  he  has 
so  reduced  hi » debt,  unless  it  be  also  the  next  term 
after  he  was  taken  in  execution"". 

The  act  requires,  that  the  petition  should  be  ex- 
hibited before  the  end  of  the  first  term  next  after 
the  prisoner  is  charged  in  execution.  But  where  a 
defendant  taken  on  a  capias  ad  satisjaciendiim  es- 
caped, 

^  1  Bos.  &  Pul.  336.  Rep.  372.  S.  C. 

13    Bur.    1322.     1  Blac.  «"  1  Bos.  &  Pul.  423. 


OF   EXECUTION.  965 

caped,  and  was  retaken  and  committed  to  the  cus- 
tody of  the  marshal  in  a  subsequent  term,  the  court 
held,  that  he  might  apply  to  be  discharged,  under 
the  Lords'  act,  in  the  term  following ".  And  by  the 
statute  33  Geo.  III.  c.  5.  §  5.  "where  any  debtor 
"  shall  have  neglected  to  take  the  benefit  of  the 
*'  acts,  within  the  time  limited,  and  shall  make  it 
"  appear  to  the  court  out  of  which  the  execution 
''  issued,  that  such  neglect  arose  from  ignorance 
"  or  mistake,  such  debtor  shall  then  be  entitled  to 
*'  take  the  benefit  of  the  acts,  as  if  he  had  taken  the 
"  same,  within  the  time  so  limited  as  aforesaid." 
Upon  which  statute  it  has  been  holden,  thatapri- 
soner  is  entitled  to  the  benefit  of  the  acts,  who  has 
been  prevented  from  applying  for  it  in  due  time, 
by  the  misconduct  of  his  agent  °. 

When  a  prisoner  intends  to  take  the  benefit  of 
the  Lords'  act,  he  must  give  to  or  leave  for  every 
creditor  at  whose  suit  he  is  in  execution,  or  his  exe- 
cutors or  administrators,  at  his  or  their  usual  place 
of  abode,  or  in  case  they  cannot  be  met  with,  to  or 
for  his  or  their  attorney  or  agent  last  employed  in  the 
action,  a  noticein  writing'',  signed  with  his  proper 
name  or  mark,  importing  that  he  intends  to  petition 
the  court,  and  setting  forth  a  true  copy  of  the  ac- 
count or  schedule  •*  he  intends  to  deliver  in ;  which 

notice 

^  4.T.  R.   367.  107. 

"  Id.  231.  «!/£/.§  lOS. 

I'  Append.  Chap.  XLI.  § 


966  or  EXECUTION. 

notice  must  be  given  Jourteen  days  at  least  before 
the  petition  is  presented  ■" :  though  the  judges  in 
one  case  held,  in  favour  of  Hberty,  that  under  cir- 
cumstances, the  day  of  giving  the  notice  might  be 
reckoned  as  one  %  An  affidavit  is  annexed  to  the 
notice  and  schedule,  made  by  some  person  who 
saw  the  defendant  sign  them  ^ :  And  an  affidavit  of 
the  due  service  of  the  notice  and  schedule  is  also 
to  be  made,  on  unstamped  paper,  and  sworn  before 
a  judge  in  town,  or  commissioner  in  the  country  ". 
After  the  expiration  of  the  time  specified  in  the 
notice,  the  petition  "^  is  to  be  exhibited,  with  a  cer- 
tificate annexed,  or  copy  of  causes  in  which  the 
defendant  stands  charged,  obtained  from  the  gaol- 
er, or  from  the  clerk  of  the  papers,  if  the  defendant 
be  in  custody  of  the  marshal :  If  he  be  in  any  other 
custody,  there  must  be  an  affidavit^  of  seeing  the 
gaoler  sign  the  certificate  '■''.  The  petition,  certifi- 
cate and  affidavit  of  service  of  the  notice  being  left 
with  the  clerk  of  the  rules,  he  will  draw  up  a  rule 
for  bringing  the  prisoner  into  court,  and  summon- 
ing the  creditors  to  appear,  personally  or  by  attor- 
ney, at  some  certain  day  to  be  therein  specified '' ;  a 

cop3^ 

'  32  Geo.  II.  c.  28.  §  13.  »  Id.  §  1 10. 

s  4  Bur.  2525  ^/rf.  §111. 

^  Append.  Cliap.  XLI.  §  «'  /j.  §  1 12. 

i09.  X  32  Geo.  II.  c.  28.  §  13. 


OF  EXECUTION.  967 

copy  of  which  rule  should  be  served  on  each  cre- 
ditor, and  also  on  the  gaoler,  and  an  affidavit  made 
of  such  service  ^ .  But  it  is  ordered,  that  insolvent 
debtors  petitioning  under  the  Lords'  act,  and  sub- 
sequent acts  for  their  further  relief,  shall  be  brought 
into  court,  during  term-time,  upon  Mondays  and 
Thursdays^  and  upon  no  other  days  ^. 

When  the  prisoner  is  charged  in  execution  above 
twenty  miles  from  Westminster-hall^  or  the  court 
out  of  which  the  execution  issued,  the  rule  re- 
quires him  to  be  brought  to  the  next  assizes,  and 
that  the  creditors  be  summoned  to  appear  there ; 
and  a  copy  of  such  rule  is  to  be  served  on  every 
creditor,  his  executors  or  administrators,  or  left  at 
his  or  their  dwelling  house,  or  usual  place  of  abode^ 
or  with  his  or  their  attorney,  fourteen  days  at  least 
before  the  holding  of  such  assizes  *. 

On  bringing  up  tlie  prisoner,  the  court  or  judge 
of  assize  are,  in  a  summary  way,  to  examine  into 
the  matter  of  the  petition ;  and  after  being  swoni  to 
the  truth  of  his  schedule,  if  no  opposition  be  made, 
he  is  discharged  of  course,  upon  executing  an  as- 
signment and  conveyance  of  his  estate  and  effects, 
for  the  benefit  of  his  creditors  ;  which  is  done  by  a 
short  indorsement  on  the  back  of  the  petition''. 
The  prisoner  may  be  compelled,  under  the  Lords' 

act, 

y  Append.  Chap.  XLI.  §  113.         »  32  Geo.  II.  c.  28.  %  15. 
'H.H.  37  Geo.  III.  ^  Id.%  13. 


k 


968  OF  £XECUTIOMr. 

act,  to  include  in  his  schedule,  every  thing  that  he 
can  sell  for  his  own  benefit  "^ :  And  the  place  of  a 
life -guardsman  being  constantly  sold,  the  court 
will  compel  a  prisoner  who  holds  such  a  place  to 
sell  it,  and  insert  the  value  in  his  schedule,  before 
they  permit  him  to  take  the  benefit  of  the  act  **. 
But  the  half- pay  of  an  officer  is  not  the  subject  of 
sale ;  and  therefore  a  prisoner  cannot  be  compelled 
to  include  it  in  his  schedule  ^ 

If  the  persons,  at  whose  suit  the  prisoner  is  in 
execution,  are  not  satisfied  with  the  truth  of  his 
oath,  and  cither  personally  or  by  attorney  desire 
further  time,  the  court  may  remand  him ;  and  direct 
the  parties  to  appear  on  some  other  day,  to  be  ap- 
pointed by  the  court,  within  the  first  week  of  the 
next  term  at  farthest  \  or  sooner  if  the  court  shall 
think  fit^:  And  the  creditors  may  file  mterrogato- 
ries  for  his  examination,  before  he  is  admitted  to 
take  the  benefit  of  the  act  ^.  In  such  case  it  is  a 
rule,  that  the  creditor  do  file  his  interrogatories  with 
the  clerk  of  the  rules,  and  that  the  clerk  of  the 
rules  do  thereupon  draw  up  a  rule  for  the  debtor's 
examination  before  the  master,  to  whom  he  shall 
also  deliver  the  original  interrogatories ;   and  that 

the 

3T.  R.  681.  f  32  Geo.  II.  c.  28.  §  13. 

^  Id.  ibid.  Cadwallader  Jones's  s  3  Bur.  1393. 

case,  M.  14  Geo.  III.  ^  33  Geo.  III.  c.  5.  §  5. 
«3T.  R.  68!. 


OF  EXECUTION.  969 

the  debtor  having  been  previously  sworn  in  open 
court  for  the  purpose,  the  master  shall  proceed  to* 
take  down  in  writing  the  examination  of  the  deb- 
tor, in  answer  to  the  said  interrogatories ;  and  the 
same  being  signed  by  the  debtor,  shall  be  afterwards 
filed  by  the  master,  with  the  clerk  of  the  rules ; 
and  the  said  interrogatories  and  examination  shall 
be  produced  by  the  clerk  of  the  rules  and  read, 
when  the  debtor  shall  on  a  subsequent  day  be 
brought  up  by  rule  for  that  purpose  \ 

All  objections  to  the  insufficiency  of  the  sche- 
dule, in  point  ofjorm,  must  be  made  the  first  time 
the  prisoner  is  brought  up ''.  And  if,  at  such  se- 
cond day,  the  creditor  shall  make  default,  or  shall 
appear  and  be  unable  to  discover  any  estate  or  ef- 
fects omitted  in  the  account,  the  court  shall  imme- 
diately order  the  prisonerto  be  discharged,  upon  his 
executing  an  assignment  and  conveyance  of  his 
estate  and  effects  ;  unless  the  creditor  insist  upon 
his  being  detained  in  prison,  and  sh^ll  agree  by 
writing,  signed  with  his  name  or  mark,  (or,  if  he 
be  out  of  England,  under  the  hand  of  his  attor- 
ney,) to  pay  and  allow  the  prisoner  weekly,  a  sum 
not  exceeding  3^.  6^.  or  if  more  creditors  than  one 
insist  on  his  detention,  not  exceeding  2s.  a- week 
each^   to  be  paid  on  Monday  in  ever)"  week,  so 

lone 

i  R.  E.  36  Geo.  III.  i  37  Geo,  III.  c.  85.  §  3,  4. 

k  32  Geo.  II.  c.  28.  §  13. 

Vol.  II.  2P 


970  OF   EXECUTION. 

long  as  the  prisoner  shall  continue  in  execution ; 
and  in  every  such  case,  the  prisoner  shall  be  re- 
manded '".  But  if  failure  be  made  in  payment  of 
the  said  weekly  sums,  the  prisoner,  upon  applica- 
tion to  the  court  in  term-time,  or  in  vacation  to  a 
judge,  may,  by  order  of  the  court  or  judge,  be 
discharged  out  of  custody,  on  executing  an  as- 
signment and  conveyance  of  his  estate  and  ef- 
fects". 

The  note  or  security  for  payment  of  the  prison- 
er's allowance  ",  must  be  signed  by  the  plaintiff,  if 
in  England^  or  otherwise  by  his  attorney ;   it  not 
being  sufficient  for  the  attorney  to  sign  the  note,  if 
his  client  can  be  met  with  ^ :  And  if  the  note  be 
not  signed  by  the  plaintiff  in  open  court,  it  is  the 
practice  to  require  an  affidavit  with  the  note,  shew- 
ing that  it  was  duly  signed  "•.  Where  there  are  seve- 
ral plaintiffs,  the  note  must  be  signed  by  all  of  them '^, 
or  if  they  are  partners,  by  one  on  behalf  of  himself 
and  the  others " ;  a  note  signed  by  one  of  several 
lessors  of  the  plaintiff  in  ejectment '',  or  by  one  of 

several 

"^  32  Geo.  II.  c.   28.  §    13.  114. 

If  a  plaintiff  hold  the  defend-  p  Imp.  K.  B.  646.  and  see  1 

ant  in  execution  in  several  ac-  Bos.  &  Pul.  337. 

tions,  he  need  not  give  more  i  Edwards  v.  Carter,  M.  36 

than  one  note    for  3s.  bd.   a  Geo.  III. 

week.    Jones  v.    Cox,   M.    36  ••  7  T.  R.  156.  8  T.  R.  325. 

Geo.   III.  s  8  T.  R.  25. 

n  32  Geo.  II.  c.  28.  §  13.  t  7  T.  R.  156. 

°  Append.   Chap.   XLI.    § 


OF  EXECUTION.  971 

several  executors  ",  without  mentioning  the  others, 
not  being  deemed  sufficient.  The  payment  is  to 
be  made,  by  the  act,  every  Monday  \  and  the  note 
must  be  drawn  up  accordingly  ^'.  It  was  determined 
in  one  case '",  that  such  a  note  ought  to  be  stamp- 
ed :  But  the  judges,  upon  a  conference,  afterwards 
held  a  stamp  to  be  unnecessary  ''.  If  the  payment 
be  not  made  in  time,  the  prisoner  has  a  right  to  his 
discharge  ^ :  And  where  it  was  not  made  before 
ten  o'clock  at  night  of  the  day  on  which  it  became 
due,  it  was  holden  that  the  defendant's  right  to  his 
discharge  was  not  waived,  by  the  turn-key  on  the 
felon's  side  accepting  it  after  that  time''.  The 
mode  of  obtaining  a  prisoner's  discharge  for  non- 
payment of  the  allowance,  is  by  application  to  the 
court  in  term-time,  or  to  a  judge  in  vacation :  And 
a  judge's  order  for  a  prisoner's  discharge  under 
the  Lord's  act,  made  out  of  term,  we  have  seen " 
is  final. 

It  sometimes  happens,   that  persons  who  are 
prisoners  in  execution  in  gaol  for  debt  or  damages, 

will 

.«»  8  T.  R.  325.  Id.  ibid. 

V  Blakemore  v.    Ronea,    M.  *  7  T.  R.  530. 

36  G.  III.  K.  B.  3Bos.  &Pul.  ^  Id.  670.  1  Bos.  &  Pul.271. 

184.  e.  P.    And  in  this  latter  y  Say.  Rep.  103.  Doug.  67. 

court,it  seems  that  such  a  note  and  see  7  T.  R.  157. 

ought  to  contain  an  express  '^  5  T.  R.  36.  and  see  7  T. 

promise  to  pay  the  allowance  R.  156. 

on  a   Monday.,   although  it  be  »  Jntt\  464. 
ttated  on  th*t  day  of  the  week. 


972  OF  £XEC0TION. 

will  rather  spend  their  substance  in  prison,  than 
discover  and  deliver  up  the  same,  towards  satis- 
fying- their  creditors  their  just  debts,  or  so  much 
thereof  as  such  substance  will  extend  to  pay :  To 
remedy  ^vhich,  there  are  compulsive  clauses  in  the 
Lord's  act  *",  by  which  it  is  enacted,  that  "  if  any 
*'  prisoner  who  shall  be  committed  or  charged  in 
"  execution,  in  any  prison  or  gaol,  for  any  debt 
"  or  damages  not  exceeding  one  hundred  pounds. 
"  besides  costs,"  (since  extended  to  200/.  by  the 
26  Geo.  III.  c.  44.  ^  2.)  "  shall  not  within  three 
"  months  next  after  every  such  prisoner  shall  be 
"  committed  or  charged  in  execution,  make  satis- 
"  faction  to  his  or  her  creditor  or  creditors,  who 
''  shall  charge  any  such  prisoner  in  execution,  for 
"  such  debt,  damages  and  costs;  then  such  cre- 
"  ditor  or  creditors  may  require  every  such  priso- 
"  ner  (on  giving  twenty  days  notice'^  in  writing  to 
"  him  or  her,  of  such  creditors  design,)  to  give  in 
"  to  the  court  at  law,  from  which  the  writ  or  pro- 
"  cess  issued,  on  which  any  such  prisoner  shall  be 
"  charged  in  execution,  or  into  the  court  in  the 
"  prison  of  which  any  such  prisoner  shall  be  remo- 
"  ved  by  habeas  corpus ^  or  shall  remain  or  be 
"  charged  in  execution,  within  the  first  seven  days 
''  of  the  term  which  shall  next  ensue  the  expiration 
''  of  the  said  twenty  days,  in  respect  to  any  priso 

"  ner 

i>  32  Geo.  II.  c.  28.  §  16, 17.      -  Append.  Chap.  XLI.  §  1 15 


OF  EXECUTION.  97S 

"  ner  charged  in  any  prison  belonging  to  the 
'^  courts  in  Westminster -hall;  and  at  the  second 
"  court  which  shall  be  held  by  any  other  court  of 
"  record,  after  the  expiration  of  the  said  twenty 
"  days,  in  respect  to  any  prisoner  charged  in  any 
"  prison  belonging  to  such  other  court;  and  where 
"  any  such  prisoner  shall  be  charged  in  execution 
"  in  any  county  gaol,  or  other  gaol  or  prison,  above 
"  the  space  of  twenty  miles  distant  from  fVestmin- 
"  ster-hall,  or  the  court  or  courts  out  of  which  the 
'^  writ  or  process  issued,  on  which  any  such  priso- 
"  ner  is  or  shall  be  charged  in  execution,  then  to 
"  give  in  upon  oath,  at  the  assizes  or  great  sessions, 
'*  and  on  the  crown- side  thereof,  which  shall  be 
"  held  for  the  county  or  place  in  the  prison  of 
*'  which  any  such  prisoner  shall  be,  next  after  the 
•'  expiration  of  twenty  days  from  the  time  of  gi- 
"  vingany  such  notice;  a  true  account  in  writing, 
*'  to  be  signed  with  the  proper  name  or  mark  of 
"  every  such  prisoner,  of  all  the  real  and  personal 
*'  estate  of  such  prisoner,  and  of  all  incumbrances 
"  affecting  the  same,  to  the  best  of  his  or  her 
"  knowledge  and  belief,  in  order  that  the  estate 
*'  and  effects  of  such  prisoner  may  be  divested 
*'  out  of  him  or  her,  and  may  by  the  court,  judge 
"  or  judges,  justice  or  justices  aforesaid,  be  or- 
*'  dered  to  be  assigned  and  conveyed  in  manner 
*'  and  for  the  purposes  thereinafter  declared'*." 

"  And 

<i  Append  Chap.  XLI.  %  U7. 


974  OF  EXECUTION. 

"  And  every  such  creditor  or  creditors  shall  also 
"  give  twenty  days'  like  notice  in  writing,  of  such 
"  his  her  or  their  intention  to  require  any  such 
*'  prisoner  to  be  brought  up  as  aforesaid,  to  all 
"  and  every  other  creditor  and  creditors  of  every 
"  such  prisoner,  if  any,  at  whose  suit  any  such 
*'  prisoner  shall  be  detained  or  charged  in  custody*, 
"  if  such  other  creditor  or  creditors  can  be  met 
''  with;  and  if  not,  then  to  the  attornies  last  em- 
"  ployed  in  the  actions  or  suits,  in  which  any  such 
"  prisoner  shall  be  so  detained  or  charged  irt  custo- 
"  dy,  by  any  such  other  creditor  or  creditors:  And 
"  shall  likewise  give  a  like  notice  in  writing  to  the 
"  sheriff  or  sheriffs,  gaoler  or  keeper  of  the  gaol  or 
"  prison,  in  which  any  such  prisoner  shall  be  de- 
"  tained  in  custody^,  of  such  his  or  her  intention 
^^  to  have  any  such  prisoner  so  brought  up,  and  to 
"  require  such  sheriff,  &c.  to  bring  up  every  such 
'■'  prisoneraccordingly;  and  every  such  notice  which 
"  shall  be  so  given  to  any  such  sheriff,  &c.  shall  be 
"  so  given,  twenty  days  at  least  before  the  time 
"  appointed  for  any  such  prisoner  to  be  so  brought 
"  up;  and  thereupon  every  such  sheriff,  &c.  shall 
"  at  the  costs  of  such  creditor  or  creditors,  cause 
"  every  such  prisoner  to  be  brought,  as  by  such 

"  notice 

c  Append.  Chap.   XLI.  §  intention  to  have  the  prisonep 

116.  brought     up,    should     require 

f  The  notice  to  the  sheriff  him  to  bring  up  the    prisoner 

or  gaoler,  of  the   plaintiff's  accordingly. 


OF   EXECUTION.  975 

*'  notice  in  writing  shall  be  required,  to  such  court, 
"  assizes  or  great  sessions  as  aforesaid,  together 
"  with  a  copy  of  causes  of  his  or  her  detainer 
"  there." 

"  And  that  every  prisoner  who,  in  pursuance  of 
"  this  act,  shall  be  brought  up  to  any  such  court, 
"  assizes  or  great  sessions  as  aforesaid,  shall,  on 
^*  proof  being  there  first  made  of  such  notices  as 
"  aforesaid  having  been  given,  deliver  in  there  tin 
*'  open  court,  upon  oath,  within  the  time  therein- 
"  before  for  that  purpose  prescribed,  a  full  true  and 
"  just  account,  disclosure  and  discovery  in  writing, 
"  of  the  whole  of  his  or  her  real  and  personal  estate, 
**  and  of  all  books,  papers,  writings  and  securities, 
"  relating  thereto,  and  of  all  incumbrances  then  af- 
"  fecting  the  same,  and  the  respective  times  when 
"  made,  to  the  best  of  his  or  herknowledge  and  be- 
"  lief,  (other  than  and  except  the  necessary  Avearing 
"  apparel  and  bedding  of  such  prisoner,  and  his  or 
"  her  family,  and  the  necessary  tools  or  instruments 
"  of  his  or  her  respective  trade  or  calling,  not  ex- 
"  ceedingthe  value  of  ten  pounds  in  the  whole,) 
"  which  account  shall  be  subscribed  with  the  pro- 
*'  per  name  or  mark  of  the  prisoner,  who  shall  so 
"  deliver  in  the  same." 

"  And  on  the  delivering  in  of  any  such  account, 
"  the  estate  and  effects  of  ever)-  such  prisoner  shall 
"  be  by  him  or  her  assigned  and  conveyed,  by  a 

"  short 


976  «F   EXECUTION. 

'^  short  indorsement  on  the  back  of  every  suchac- 
"  count,  to  such  person  or  persons  as  the  court, 
*'  judge  or  judges,  justice  or  justices,  in  which  or 
*'  to  whom  any  such  account  shall  be  so  given  in, 
•'  shall  order  or  direct,,  in  trust,  and  for  the  bene- 
"  fit  of  the  creditor  or  creditors,  who  shall  have 
"  required  any  such  prisoner  to  be  brought  up  as 
''  aforesaid,  and  of  such  other  creditor  or  creditors 
-'  (if  any)  of  ever)^  such  prisoner,  at  whose  suit  any 
"  such  prisoner  shall  be  charged  in  custody  or  exe- 
"  cution,  and  who  shall,  by  any  memorandum  or 
"  writing,  to  be  signed  by  such  creditor  or  credi- 
"  tors,  before  any  such  conveyance  or  assignment 
''  shall  be  made,  consent  to  any  such  prisoner's 
"  being  discharged  out  of  gaol  or  prison,  at  his 
^'  her  or  their  suit,  and  agree  to  accept  a  propor- 
^  tionable  dividend  of  such  prisoner's  estate  andef- 
*'  fects,  with  the  creditor  or  creditors  who  shall 
"  have  required  any  such  prisoner  to  be  brought 
*'  up;  and  if  there  shall  be  no  other  creditor  or 
•'  creditors,  or  there  being  any  such,  if  he  she  or 
''  they  shall  not  agree  in  writing  to  discharge  such 
"  prisoner,  and  accept  such  proportionable  dividend 
*•'  as  aforesaid,  then  in  trust  for  the  creditor  or  cre- 
"  ditorsonly,  who  shall  require  any  suchprisonerto 
'  be  brought  up  for  the  purpose  aforesaid  :  And 
"  by  such  assignment  and  conveyance  as  aforesaid, 
"  all  the  prisoner's  estate  and  effects  shall  be  vested 
•■'  in  the  creditor  or  creditors,  to  whom  the  same 

"  shall 


OF  EXECUTION.  977 

"  shall  be  assigned  and  conveyed  in  trust  as  afore- 
*'  said;  and  if  any  overplus  shall  remain  of  any 
"  such  prisoner's  estate,  after  payment  of  the  debt, 
*'  or  damages  and  costs,  which  shall  be  due  to  any 
"  creditor  or  creditors,  at  whose  suit  any  such 
"  prisoner  shall,  in  pursuance  of  this  act,  be  dis- 
*'  charged  out  of  gaol  or  prison,  and  all  reasonable 
"  charges  expended  in  or  by  means  of  getting  in 
''  such  estate  or  effects,  the  same  shall  be  paid  to 
*'  such  prisoner,  his  or  her  executors,  administra- 
"  tors  or  assigns." 

"  And  upon  every  such  discovery,  assignment 
"  and  conveyance  being  made  and  executed,  to 
*'  the  satisfaction  of  the  court,  judge  or  judges  of 
"  assize,  justice  or  justices  of  great  session,  before 
"  whom  the  same  shall  be  made,  every  such  prisoner 
*'  shall,  by  such  court,  &c.  be  discharged  and  set 
"  at  liberty,  in  the  actions  and  charges,  at  the 
"  suit  of  the  creditor  or  creditors,  who  shall  re- 
*'  quire  him  or  her  to  be  so  brought  up,  and  also 
*'  in  the  actions  and  charges  of  every  other  credi- 
"  tor,  who  shall  sign  such  consent  as  aforesaid,  for 
"  his  or  her  discharge,  with  the  same  benefit  of 
"  making  use  of  such  discharge,  as  is  therein  be- 
"  fore  provided  for  prisoners  seeking,  and  who 
*'  shall  obtain  their  discharge,  under  the  provisions 
"  contained  in  the  former  part  of  this  act:  And 
'*  no  stamp  shall  be  necessary  on  any  such  assign- 

VoL.  II.  2S  ment 


., 


978  OF  EXECUTION. 

"  ment  and  conveyance,  or  any  rule  or  order  which 
*'  shall  be  made  for  any  such  discharge." 

"  But  notwithstanding  any  discharge  obtained 
*'  by  virtue  of  that  act,  for  the  person  of  any 
"  prisoner,  the  judgment  obtained  against  every 
*'  such  prisoner  shall  continue  and  remain  in  force, 
*'  and  execution  may  at  any  time  be  taken  out 
"  thereon,  against  the  lands,  tenements,  rents,  or 
''  hereditaments,  goods  or  chattels  of  any  such 
"  prisoner,  other  than  and  except  the  necessar}' 
'*  wearing  apparel  and  bedding  for  himself  and  fa- 
'*  mily,  and  the  necessary  tools  for  the  use  of  his 
*'  trade  or  occupation,  not  exceeding  10/.  in  value 
"  in  the  whole  s,  as  if  he  had  never  been  before 
*'  arrested,  taken  in  execution,  and  released  out  of 
*'  prison^."  And  it  has  been  adjudged,  that  the 
effects  acquired  by  an  insolvent,  after  his  discharge 
under  the  34  Geo.  III.  c.  69.  are  liable  to  be  taken 
in  execution,  for  a  debt  due  before '. 

For  executing  a  writ  o^  fieri  facias  or  capias  ad 
satisfizciendumy  the  sheriff"  is  entitled,  by  the  statute 
29  £liz.  c.  4.  to  twelve-pence  for  every  QOs.  when 
the  sum  exceedeth  not  a  hundred  pounds,  and  six- 
pence for  every  20*.  above  that  sum,  that  he  shall 
levy  or  take  the  body  in  execution  for;  which  is 

called 

s  In  the  compulsive  clause,  restriction  in  point  of  value 

§  17.  the  exception  is  gene-  '^32  Geo.  II.  c.  28.  §20. 

ral,  and  extends  to  all  wear-  i  6  T.  R.  366. 
ing  apparel}  &c.  without  any 


OF  EXECUTION.  979 

caWedhis poundage*.  But  by  the  statute  3  Geo.  I, 
c.  15.  ^17.  poundage  upon  a  capias  ad  satisfacien- 
dum shall  not  be  demanded  or  taken,  for  any  greater 
sum  than  the  real  debt  bona  Jide  due,  and  marked 
on  the  back  of  the  writ.  And  by  the  same  statute  ^^ 
the  sheriff*  is  entitled,  upon  executing  a  writ  ol" 
elegit^  to  have  for  poundage  twelve-pence  for  every 
20^.  of  the  yearly  value  of  the  lands,  whereof  pos- 
session is  given,  where  the  whole  exceedeth  not  the 
yearly  value  of  a  hundred  pounds,  and  six -pence 
only  for  every  20*.  per  ami.  above  that  value. 

By  the  statute  23  Hen.  VIII.  c.  6.  \  8.  there  was 
due  to  his  majesty,  a  fee  of  one  half-penny  in  the 
pound,  according  to  the  value  or  sum  entered 
into  and  contained  in  every  recognisance  in  nature 
of  a  statute  staple,  taken  in  pursuance  of  the  said 
statute,  to  be  paid  on  sealing  the  first  process  on 
every  such  recognisance.  But  by  the  8  Geo.  I.  c. 
25.  §  3.  "the  prosecutor  of  every  such  recognisance 
shall,  at  the  time  of  suing  out  the  first  process,  or 
a  writ  of  extent  thereon,  deliver  in  to  the  officer 
who  shall  make  out  such  process  or  extent,  a  note 
in  writing  under  his  hand,  testifying  the  sum  or 
value  of  the  damages  thereby  intended  to  be  ex- 
tended, or  levied  thereon;  which  sum  or  value 
the  said  officer  shall  insert  in  the  said  writ,  to  be 
only  extended  or  levied  thereon,  and  no  more; 

and 

*  JWf  p.911.  k  (;  ]6. 


980  OF  EXECUTION. 

and  that  the  said  poundage  of  one  half-penny,  pay- 
able on  all  process  as  aforesaid,  shall  be  taken  and 
paid  only  for  every  pound,  according  to  the  said 
sum  or  value  so  inserted,  and  intended  to  be 
extended  and  levied  as  aforesaid,  and  not  other- 
wise :  And  that  no  sheriff  of  any  county  shall  take 
for  the  extent  and  liberate^  2Ci\&hab€re  facias  posses- 
sionem or  seisinam  on  the  real  estate,  and  levy  on 
the  personal  estate,  by  virtue  of  such  extent,  any 
more  than  the  same  fees  as  are  appointed  by  the  3 
Geo.  I.  c.  15.  for  executing  a  writ  of  elegit^  and 
habere  facias  possessionem  or  seisinam;  under  the 
like  penalties  and  forfeitures,  and  to  be  in  like 
manner  recovered,  against  every  sheriff  or  person 
therein  offending,  as  are  mentioned  and  appointed 
in  and  by  the  same  act." 

If  a  sheriff  levy  under  2ijieri  facias^  he  is  entitled 
to  poundage,  though  the  parties  compromise,  be- 
fore he  sells  any  of  the  defendant's  goods  •;  and  he 
is  entitled  thereto,  upon  a  capias  ad  satisfaciendum  y 
though  the  defendant  go  to  prison,  without  satis- 
fying the  plaintiff".  But  it  seems  that  he  is  not  en- 
titled to  poundage  on  executing  a  writ  of  attach- 
ment, for  non-payment  of  money".  For  the 
poundage  he  is  entitled  to,  the  sheriff  may  main- 
tain an  action  of  debt  on  the  statute  °,  or  he  may 

retain 

1  5  T.  R.  470.  "2  East,  411. 

'"4  Burr.  1981.1mp. -S/^er.        °  I  Salk.   209.    2,:i3.     2  Ld/ 
145,  Raym.  1212.  S.C. 


I 


OF   EXECUTION.  981 

vetain  it  out  of  the  sum  levied ;  and  if  the  sheriff 
take  more  than  he  is  entitled  to,  he  is  liable  to  an 
action  for  treble  damages,  at  the  suit  of  the  party 
grieved  p,  and  shall  forfeit  40/.  to  the  king  and  the 
informer  *i. 

When  the  judgment  is  satisfied,  by  any  of  the 
above  species  of  execution  or  otherwise,  the  de- 
fendant has  a  right  to  call  on  the  plaintiff  for  a 
warrant '  or  authority,  directed  to  some  attorney  of 
the  court  wherein  the  judgment  is  recovered,  au- 
thorising such  attorney  to  enter  up  satisfaction  on 
the  judgment-roll;  which  being  obtained,  a  satis- 
faction-piece  *  is  made  out,  on  a  slip  of  unstampt 
parchment,  in  the  form  of  a  bail-piece,  and  taken, 
with  the  warrant  of  attorney,  to  the  clerk  of  the 
judgments,  who  will  make  an  entry  thereof  in  his 
book  of  remembrances,  and  deliver  it  over  to  the 
clerk  of  the  treasury,  who  enters  the  same  on  the 
roll  ^ 


p  2  T.  R. 

148. 

118. 

1  29  Eliz. 

c.  4. 

^Id. 

§ 

119. 

^  Append 

.  Chap. 

XLI. 

§ 

^  Id. 

§ 

120, 

CHAT 


[     982     ] 


CHAPTER  XLIL 

Of  Scire  Facias. 

A     SCIRE  FA  CIAS  is  a  judicial  writ  %  founded 
on  some  matter  of  record,  as  a  recognisance* 
judgment,  &c.  on  which  it  lies  to  obtain  execu- 
tion ^,  or  for  other  purposes  %  as  to  repeal  letters- 
patent  ^^  hear  errors  ^,  &c. 

But  though  a  scire  facias  be  a  judicial  writ,  yet 
because  the  defendant  may  plead  thereto,  it  is 
considered  in  law  as  an  action  ^:  And  therefore 
a  release  of  all  actions  is  a  good  bar  to  a  sci7-e  fa- 
cias 5 :   And  for  the  same  reason,  there  must  be  a 

new 


a  Though  a  scire  facias  be 
properly  2i  judicial  writ,  yet  be- 
ing the  foundation  of  an  action, 
it  is  sometimes  considered  as 
in  nature  of  an  original.  Skin. 
682.  Comb.  455.  S.  C.  and  see 
10  Mod.  258.  In  Littleton^  § 
505.  it  is  called  a  writ  of  exe- 
cution; and  in  one  case,  it  was 
said  to  be  in  nature  of  a  decla- 
ration.   1  Sid.  406. 

b  Lit.  §  505.  Co.  Lit.  290. 
b.  291.  a.  F.  N.  B.  267.  and 
see  3  Lev.  220. 

c  Bac.  Abr.  tit.  Scire  facias, 
A.  B. 


d  Id.  C.  3.  And  for  a  parti- 
cular account  of  the  writ  of 
scire  facias  to  repeal  letters  pa- 
tent, when  it  lies,  and  in  what 
court,  the  form  of  the  writ, 
and  the  proceedings,  trial  and 
judgmentthereon,  see  2  Wms. 
Saund.  12.  fi.  q.  and  see  id.  6 
{\).adfintm.  7  T.  R.  367. 

e  Post.  Chap.  XLIIL 

f  Co.  Lit.  290.  b.  291.  a.  2 
Wils.  251.  2Blac.Rep.  1227. 
2  T.  R.  46. 

g  Co.  Lit.  290.  b.  Comb. 
445.  Skin.  682.  S.  C.  2  Ld. 
Ravm.  1048.  2  Wils.  251. 


OF   SCIRE  FACIAS.  983 

new  warrant,  to  authorise  the  appearance  of  the 
plaintiff's  attorney '';  and  there  is  no  occasion  for 
II  rule  to  change  the  attorney  in  the  former  suit'. 
So  where  a  judgment  was  entered  for  securing  the 
payment  of  an  annuity,  before  the  17  Geo.  III.  c. 
26.  which  requires,  that  "  before  any  execution 
"  shall  be  sued  out,  or  action  brought  on  any  such 
"  judgment,  a  memorial  of  the  consideration,  &c. 
"shall  be  enrolled  in  chancery;"  this  court  set 
aside  a  scire  facias^  &c.  issued  after  the  act,  to  re- 
vive the  judgment,  for  want  of  such  a  memorial  ^'. 
Upon  a  recognisance,  a  scire  facias  is  an  origi- 
nal proceeding ;  but  upon  a  judgment,  it  is  only 
a  continuation  of  the  former  suit;  and  therefore 
where  the  defendant's  attorney,  pending  an  action, 
agreed  that  no  writ  of  error  should  be  brought, 
and  afterwards  the  defendant  died,  between  the 
execution  and  return  of  the  writ  of  inquiry,  and 
thereupon  a  ^c?re/acm  issued  against  his  executors, 
to  shew  cause  why  the  damages  assessed  upon  the 
writ  of  inquiry,  should  not  be  recovered  against 
them,  upon  which  they  brought  a  writ  of  error ; 
the  court  held,  that  the  executors  were  bound  by 
the  agreement  of  their  testator's  attorney,  and  ac- 
cordingly 

h  Cro.   Eliz.    177.      2   Ld.  ^  Say.  Rep.  218.    and   sec 

Raym.  1048.  1252,  3.  1  Salk.  7  T.  R.  337.     2  Bos.  Sc  PuK 

89.  2  Salk.  603.  S.  C.  and  see  357. 

2  Bos.  &  Pul.  357.  {b).  k  1  T.  R.  267,  8. 


984  OF   SCIRE   FACIAS. 

cordingly  ordered  him  to  nonpros  the  writ  of  error  ^: 
For  this  is  not  a  new  action,  but  a  continuation  of 
the  old  one;  it  is  only  a  scire  facias  to  revive  the 
former  judgment;  and  as  the  testator  himself,  if 
he  had  lived,  could  not  have  brought  a  writ  of 
error,  so  neither  can  his  executors  ^ 

A  recognisance  is  an  obligation  of  record,  which 
a  man  enters  into  before  some  court  of  record  or 
magistrate  duly  authorised  "",  with  condition  to  do 
some  particular  act :  And  it  is  either  at  common 
law,  or  by  statute.  A  recognisance  at  common  law 
is  either  to  the  king,  or  a  subject;  and  may  be 
acknowledged  before  any  one  of  the  judges  out  of 
term,  and  in  any  part  of  England,  and  may  be  en- 
tered on  record,  as  well  out  of  as  in  term :  So 
the  chancellor  or  keeper  may  take  recognisances 
and  award  execution,  or  hold  plea  of  scire  facias 
and  audita  querela  in  chancery  to  avoid  execution, 
&c.  as  the  case  requires,  on  all  recognisances  ta- 
ken in  that  court ".  By  the  custom  of  the  city  of 
LondoUy  the  mayor  and  aldermen,  or  the  mayor 
singly,  may  take  recognisances ;  for  the  custom  is 
not  only  reasonable  in  itself,  but  as  all  other  cus- 
toms of  the  city,  has  been  confirmed  by  act  of  par- 
liament °.  And  the  king,  by  special  commission, 
may  appoint  any  person  to  take  recognisances 
from  one  man  to  another;  and  such  recognisances, 

duly 

M  T.  R.  388.  "  Bac.  Abr.  tit.  Execution, 

<n  Bro.   Abr.  tit.    Recogni-     (B). 
sance,  24.  ^  Id.  ibid. 


OF  SCIRE  FACIAS.  985 

duly  certified  with  the  commission  into  Chancery, 
are  binding:  And  though  the  commission  be  so 
particular,  as  to  mention  only  a  recognisance  to  be 
taken  from  A.  to  B.  yet  the  commissioners  have  a 
general  power  to  take  a  recognisance  from  any 
other  person  p. 

But  recognisances  at  common  law  are  not  per- 
fect records,  till  they  are  enrolled  in  some  court  of 
record '^;  for  since  the  law  allowed  any  one  judge 
out  of  court,  and  in  any  part  of  the  kingdom,  to 
take  these  recognisances,  which  are  the  highest 
security  of  the  common  law,  it  was  very  necessary 
they  should  be  enrolled,  to  perpetuate  the  contract, 
and  by  that  means  secure  the  creditor  his  just  debt, 
which  must  have  been  very  precarious  and  uncer- 
tain, while  the  security  lay  in  the  hands  of  a  pri- 
vate person,  who  might  either  through  carelessness 
mislay,  or  by  ill  practices  be  prevailed  upon  to 
suppress  it^ 

Recognisances  by  statute  are  either  founded  on 
a  statute -merchant  or  statute -staple;  or  are  in  na- 
ture of  a  statute -staple,  by  the  23  Hen.  VIII.  c.  6. 
A  statute -77iei'chajit  is  a  bond  of  record,  acknow- 
ledged before  the  mayor  of  ZiO?ido?i,  or  chief- war- 
den of  some  other  city  or  town,  or  other  discreet 
men  for  that  purpose  chosen  and  sworn,  or  before 

one 

p  Bac.  Abr,  tit.  Execution,  •■  Bac.  Abr.  tit.  Execution.^ 
(B).  F.  N.  B.  267.  (B).  F.N.  B.  267. 

1  But  see  2  Vern.  750. 
Vol.  II.  2  T 


986  OF  SCIRE  FACIAS. 

one  of  the  clerks  of  the  statute-merchant,  pursuant 
to  the  statute  of  Acton  Burnel,  (11  Edw.  I. )  en- 
forced and  amended  by  the  statute  13  Edw.  I.  stat. 
3.  de  mercatorihus.  This  recognisance  is  to  be  en- 
tered by  the  clerk  on  a  roll,  which  must  be  double, 
one  part  to  remain  with  the  mayor  or  chief- warden, 
and  the  other  with  the  clerk,  who  shall  write  with 
his  own  hand  a  bill  obligatory,  to  which  a  seal  of 
the  debtor  shall  be  affixed,  together  with  the  seal 
of  the  king,  for  that  purpose  appointed  ^ 

The  statute -j^cp/d"  is  a  bond  of  record,  acknow- 
ledged before  the  mayor  of  the  staple,  in  the  pre- 
sence of  the  constables  of  the  staple,  or  one  of 
them,  pursuant  to  the  statute  27  Edw.  III.  stat.  2. 
c.  9.  To  this  end,  the  statute  requires  that  there 
shall  be  a  seal  ordained,  which  shall  remain  in  the 
custody  of  the  mayor  of  the  staple,  under  the  seals 
of  the  constables;  and  that  all  obligations  made 
on  such  recognisances,  shall  be  sealed  therewith  \ 
This  security  was  only  designed  for  the  merchants 
of  the  staple,  and  for  debts  on  the  sale  of  mer- 
chandises 


s  Bac.  Abr.  tit.  Execution,  be  entered  in  the  office  of  the 

(B).  clerk  of  recognisances  taken 

t/rf.  ibid.  By  the  stat.  27  according  to  the  23  Hen.  VIII. 
Eliz.  c.  4.  §  7,  8.  the  whole  c.  6.  who  is  to  enter  the  same 
tenor  and  contents  of  all  sta-  statutes  in  a  book  provided  for 
tutes-merchant  and  statutes-  that  purpose;  otherwise  they 
staple  shall,  within  six  months  are  made  void,  as  against  sub- 
after  they  are  acknowledged,  sequent  purchasers. 


I 


OF  SCIRE   FACIAS.  987 

ehandises  brought  thither;  yet  in  process  of  time, 
others  began  to  apply  it  to  their  own  purposes,  and 
the  mayor  and  constable  would  take  recognisances 
from  strangers,  surmising  that  they  were  made  for 
the  payment  of  money,  for  merchandises  brought 
-to  the  staple :  To  prevent  this  mischief,  the  parli* 
ament  in  the  23  Hen.  VIII.  reduced  the  statute- 
staple  to  its  former  limits,  and  laid  a  penalty  of  40/. 
on  the  mayor  and  constables,  who  should  extend 
the  benefit  of  the  statute  to  any  but  those  of  the 
staple.  But  though  the  statute  23  Hen.  VIII.  c.  6. 
deprived  them  of  this  benefit,  yet  it  framed  a  new 
sort  of  security,  to  be  used  by  all  persons,  known 
by  the  name  of  a  recognisance  on  the  23  Hen. 
VIII.  or  a  recognisance  in  the  nature  of  a  statute- 
staple,  so  called,  because  this  act  limits  and  ap- 
points the  same  process,  execution,  and  advan- 
tage in  every  particular,  as  is  provided  for  the  sta- 
tute-staple ^ 

A  recognisance  therefore  in  nature  of  a  statute- 
staple,  as  the  words  of  the  act  declare,  is  the  same 
with  the  former,  only  acknowledged  before  other 
persons;  for  as  the  statute  runs,  the  chief  justices 
of  the  King's  Bench  and  Common  Pleas,  and  each 
of  them,  or  in  their  absence  out  of  term,  the  mayor 
of  the  staple  at  Westminster  and  the  recorder  of 
London  jointly  together,  shall  have  power  to  take 

recognisances 

«  Bac.  Abr.  tit.  Execution^  (B). 


988  OF  SCIRE  FACIAS. 

recognisances  for  payment  of  debts,  in  the  form 
set  down  in  the  statute ''.  In  this,  as  in  the  former 
cases,  the  king  appoints  a  seal  to  attest  the  con- 
tract, and  each  of  the  justices  shall  have  the  keep- 
ing of  one  such  seal,  and  the  mayor  and  recorder 
another  of  the  like  print  and  fashion ;  and  every 
obligation  made  and  acknowledged  before  either 
of  the  justices,  or  the  mayor  and  recorder,  must  be 
sealed  with  the  seal  of  the  conusor,  the  king's  seal, 
and  the  seal  of  the  chief-justice,  or  seals  of  the 
mayor  and  recorder  before  whom  it  is  taken,  who 
are  likewise  obliged  to  subscribe  their  names'''. 
Besides  this,  a  clerk  was  appointed  to  make,  write 
and  enrol  all  obligations  thus  acknowledged,  and 
at  the  request  of  the  conusee,  his  executors  or  ad- 
mininstrators,  to  certify  such  obligations  into  chan- 
cery, under  his  seal "". 

The  statute-merchant  having  the  seal  of  the  co- 
nusor, besides  the  king's  seal,  the  conusee  may 
waive  the  execution  given  by  the  statute  13  Edw. 
I.  and  use  it  as  an  obligation,  by  bringing  an  ac- 
tion of  debt  thereon:  So,  for  the  same  reason,  may 
the  conusee  on  the  23  Hen.  VIII.  c.  6.  the  recog- 
nisance having  the  seal  of  the  conusor  to  it.  But 

it 

V  Stat.  23  Hen.  VIII.  c.  6.  cognisances,  and    certifying 

§  2,  them  into  chancery,  see  the 

w  Id.  §  3.  statutes  23  Hen.  VIII.  c  6. 

X /(/.  §  4,  5;  and  for  the  §4,5.  8  Geo.  I.  c.25.  §  1,  2, 
mode  of   enrolling  these  re- 


OF   SCIRE  FACIAS.  989 

it  is  otherwise  of  a  statute -staple,  because  the  king's 
seal  only  is  affixed  thereto,  without  that  of  the  par- 
ty, which  is  absolutely  necessary  in  all  obligations 
at  common  law  y. 

These  several  securities  bind  the  land  at  common 
law,  from  the  time  they  are  entered  into  ^ :  There- 
fore if  a  man  be  conusee  of  a  statute,  and  the 
debtor,  before  execution  sued,  alien  by  fine,  and 
five  years  pass,  yet  the  conusee  may  still  sue  out 
execution  \  But  a  creditor  by  statute  of  J.  S.  who 
becomes  bankrupt  before  the  statute  is  sued  and 
executed,  shall  come  in  only  pro  rata,  though  there 
were  lands  bound  by  the  statute ''.  And  by  the  sta- 
tute of  frauds  and  perjuries  %  "the  day  of  the 
*'  month  and  year  of  the  enrolment  of  recogni- 
"  sauces  shall  be  set  down  in  the  margent  of  the 
"  roll,  where  the  said  recognisances  are  enrolled; 
"  and  no  recognisance  shall  bind  any  lands,  tene- 
"  ments  or  hereditaments,  in  the  hands  of  any  pur- 
*'  chaser  bondjide,  and  for  valuable  consideration, 
*'  but  from  the  time  of  such  enrolment."  It  is  also 

declared 

y  Bac.  Abr.  tit.  Execution,  z  2  Bac.  Abr.  363.  3  Co.  14. 
(B);  and  for  a  fuller  account  ^  1  Chan.  Cas.  268.  1  Mod. 
of  these  securities,  the  differ-  217. 
ences  between  them,  and  the  ^  1  P.  Wms.  92. 
mode  of  proceeding  thereon,  c  29  Car.  II.  c.  3.  §  18.  ex- 
see  Bac.  Abr.  \\\.,  Exccutmi,  tended  to  JFa/e*  and  the  coun- 
(B).  Com.  Dig.  tit.  Statute-  ties/m/af//?^,  by  the  8  G.  I.  c 
Merchant.  25.  §  6. 


990  OF   SCIRE  FACIAS. 

declared  by  the  register-acts"^  that  "  no  statute  or 
"  recognisance  (other  than  such  as  shall  be  entered 
"  into,  in  the  name  and  upon  the  proper  account 
"  of  his  majesty,)  shall  affect  or  bind  any  manors, 
"  lands,  tenements  or  hereditaments,  in  Middlesex 
"  or  Yorkshire,  but  only  from  the  time  that  a  me- 
"  morial  of  such  statute  or  recognisance  shall  be 
''  entered  at  the  register-office,  in  such  manner  as 
"  therein  is  directed." 

With  regard  to  the  time  of  suing  out  execution 
on  these  several  securities,  a  distinction  is  to  be 
made  between  recognisances  at  common  law,  and 
statutes- merchant,  &c. ;  for  upon  the  former,  if  the 
conusee  did  not  take  out  execution,  within  a  year 
after  the  day  of  payment  assigned  in  the  recogni- 
sance, he  was  obliged  to  commence  the  suit  again 
by  original;  the  law  presuming  the  debt  might 
have  been  paid,  if  he  did  not  sue  execution 
within  a  year  after  the  money  became  payable : 
But  this  was  altered  by  the  statute  Westm,  2.  (13 
Edw.  I.)  Stat.  1.  c.  45.  which  gives  the  conusee  a 
scire  facias  to  revive  the  judgment,  and  put  it  in 
execution,  if  the  conusor  cannot  stay  it,  by  plead- 
ing such  matters  as  the  law  judges  sufficient  for 
that  purpose,  such  as  a  release,  &c.  But  the 
conusee  of  a  statute -merchant,  &:c.  may  at  any  time 

sue 

<!  Ante,  862 


OF  SCIRE  FACIAS.  991 

sue  execution,  without  the  delay  or  charge  of  a 
scire  facias  ^. 

Another  distinction  is  to  be  made  between  re- 
cognisances at  common  law,  and  by  statute ;  for 
on  the  first,  if  the  conusee  die  before  execution 
sued,  his  executor  shall  not  sue  it,  even  within 
the  year,  without  bringing  a  scire  facias  against  the 
conusor :  The  reason  is,  because  the  law  presumes 
that  the  debt  might  have  been  paid  to  the  testa- 
tor, and  therefore  will  not  suffer  the  debtor  to  be 
molested,  unless  it  appear  that  he  hath  omitted  to 
perform  the  judgment;  and  for  that  purpose  a 
scire  facias  must  be  brought  by  the  executor,  for 
the  alteration  of  the  person  altereth  a  process  at 
common  law :  But  this  tending  to  delay,  the  scire 
facias  was  taken  away  on  recognisances  created  by 
statute-law,  by  the  several  acts  of  parliament 
which  introduced  them ;  and  therefore,  upon  the 
death  of  the  conusee  of  a  statute -merchant,  &c.  his 
executors  may  come  into  Chancery,  and  upon  pro- 
ducing the  testament  and  the  statute,  have  execu- 
tion without  a  scire  facias,  as  the  testator  himself 
might  have  had  ^. 

But  the  recognisance  which  will  here  principally 
claim  our  attention,  is  the  recognisance  entered 
into  by  the  bail  in  an  action,  or  upon  a  writ  of 

error, 

«  Bac.  Abr.  tit.  ExecuttQii,        f  Id.  ibid. 
B.  tit.  Scire  facias,  C. 


992  OF  SCIRE  FACIAS. 

error,  either  alone  or  jointly  with  the  principal. 
Thtjbrm  of  the  recognisance  of  bail  in  an  action 
differs,  accordingly  as  the  action  is  by  bill  or  origi- 
nal: In  actions  by  bill,  the  undertaking  of  the  bail 
is  general,  that  if  the  defendant  be  condemned  in 
the  action,  they  will  pay  the  condemnation-money, 
if  the  defendant  shall  not  pay  the  same,  or  render 
himself  to  the  prison  of  the  marshal^.  By  original, 
their  recognisance  is  taken  in  a  penalty  or  sum  cer- 
tain, being  double  the  amount  of  the  sum  sworn 
to,  upon  the  like  condition^.  Therefore,  if  the 
defendant  be  condemned  in  the  action,  and  do  not 
pay  the  condemnation-money,  or  render  himself 
to  the  prison  of  the  marshal,  in  due  time,  (or  if 
there  be  several  defendants,  and  they  do  not  all 
render  themselves^,)  the  recognisance  is  forfeited, 
and  the  bail  are  liable  to  be  sued  thereon,  unless 
discharged  by  some  of  the  means  stated  in  a  pre- 
ceding chapter ' :  And  a  cognovit  by  the  principal, 
without  notice  to  the  bail,  does  not  discharge 
them''.  But  if  the  principal  be  not  condemned, 
or  (which  is  tantamount)  be  not  condemned  in 
the  same  action,  as  where  the  plaintiff  declares 
against  the  defendant,  for  a  different  cause  of  action 
from  what  is  expressed  in  the  process  ',  or  affidavit 

to 

§  J7itey  220.  k  5  T.  R.  277.  Jnte,  244. 

H  2  Lev.  192.  1  Vent.  315.        '  I  Str.  202.  2H.Blac.2rs. 
i  Chap.  XI.  p.  242,  &c. 


OF   SCIRE   FACIAS.  993 

to  hold  to  ball'",  or  by  original,  in  a  different  county 
from  that  where  the  action  is  brought",  his  bail  are 
discharged:  And  they  are  also  discharged,  where 
the  cause  is  referred  to  arbitration,  unless  it  be 
agreed  on  the  reference,  that  a  verdict  shall  be  ta- 
ken, and  judgment  entered  for  the  plaintiff's  se- 
curity ^ 

Before  any  proceedings  can  be  liad  against  the 
bail  in  the  action,  upon  their  recognisance,  a  capias 
ad  satisfaciendum  must  be  sued  out  against  the 
principal,  and  returned  non  est  inventus :  For  it  is 
clearly  settled,  that  no  scire  facias  or  action  of  debt 
lies  against  the  bail  in  the  action,  until  a  non  est  inven- 
tus be  returned,  upon  a  capias  ad  satisfaciendum 
against  the  principal ;  for  the  bail  are  not  bound  to 
render  the  principal,  till  they  know,  by  the  plain- 
tiff's suing  out  this  writ,  that  he  means  to  proceed 
against  the  person  of  the  defendant  ^ :  And  if  the 
principal  be  already  in  custody  of  the  sheriff,  in 
another  action,  the  sheriff  will  not  be  justified  in 
returning  non  est  inventus"^.  But  so  as  the  co/>i(ars 
ad  satisfaciendum  be  regularly  sued  out  and  return- 
ed, it  may  be  filed  at  any  time ;  the  filing  being 

mere 

«  6  T.  R.  363.  7  T.  R.  80.  139.  Cro.  Car.  48 1 .  Sty.  Rep. 

n3  Lev.  235.  R.  E.  2  Geo.  281.  288.  323.  Lutw.  1273.   I 

II.  a.  Barnes,  116.  Ld.  Raym.  156.  10  Mod.  267. 

o  Ante,  761,  2.  R,  E.  5  Geo.  II.  Rei,-.  3.  a. 
i>  Poph.   186.   W.    Jon.  29.         q  Per.  Cur.  M.  42  G.  III. 

Vol.  11.  2U 


994  OF  SCIRE   FACIAS. 

"mere  matter  of  form  "^ :  And  if  the  principal  die  af- 
ter the  return  of  the  capias  ad  satisfaciendum^  and 
before  the  return  be  filed,  the  bail  are  fixed,  and 
the  court  will  not  stay  the  filing  of  the  return,  in 
favour  of  the  bail  ^ 

The  capias  ad  satisfaciendian  against  the  princi- 
pal, should  be  directed  to  the  sheriff  of  the  county 
where  the  original  action  was  laid  :  And  where  the 
proceedings  are  by  bill,  there  must  be  eight  days, 
or  if  by  original  fifteen  days,  between  the  teste  and 
return  of  the  writ  ^ ;  the  latter  being  a  case  except- 
ed out  of  the  statute  13  Car.  II.  stat.  2.  c.  2.  §  7: 
And  in  order  to  charge  the  bail,  it  must  lie  four 
days  exclusive  in  the  sheriif's  ofiice";  and  be  made 
returnable,  like  the  former  proceedings,  on  a  day 
certain,  or  general  return-day. 

Upon  the  return  of  jion  est  ijiventus  to  the  capias 
■ad  satisfaciendum^  the  recognisance  being  forfeit- 
ed, the  plaintiff  may  proceed  thereon  against  the 
bail  in  the  action,  and  against  the  principal  also,  if 
he  joined  in  the  recognisance,  by  action  of  debt  or 
scire  facias  :  And  the  proceeding  in  either  case 
may  be  commenced  on  the  return-day  of  the  capias 
ad  satisfaciendum  against  the  principal ''.  In  debt, 
the  plaintiff  may  bring  one  action  against  all  the 

persons 

«•  1  Lev.  225.    3  Bur.  1360.  Reg.  3.  a. 
1  Blac.  Rep  393.  S.  C.  "2  Salk.  599.  R.  E.  5  Geo 

»  6  T.  R.  284.  II.  Reg.  3.  a. 

t  2  Salk.  602.  2  Ld.  Raym.        ^  8  T.  R.  628.  and  see  2  Ld. 

\  177.   S.  C.  R.  E.  5  Geo.  II.  Raym.  1567.  2  Str.  866.  S.  C 


OF  SCIRE  PACIAS.  995 

persons  bound  in  the  recognisance,  or  several  ac« 
tions  against  each  of  them  :  But  one  scire  facias 
seems  in  all  cases  to  be  sufficient;  for  the  recog- 
nisance being  joint  and  several,  it  is  holden  that 
the  execution  may  be  several,  though  the  scire  fa- 
cias was  joint "'. 

In  an  action  oidebt  upon  a  recognisance  of  bail, 
the  defendant  cannot  be  arrested;  for  the  suffi- 
ciency of  the  bail  must  have  been  proved  or  ad- 
mitted, previous  to  their  being  allowed;  and  if  the 
defendant  were  arrested  in  such  an  action,  there 
would  be  bail  in  ijifiiiitum  ''.  And  where  a  writ  is 
sued  out  upon  a  recognisance  of  bail,  it  is  necessa- 
ry, by  rule  of  court,  that  after  the  words  "  in  a  plea 
*'  of  trespass  ^^"^  there  should  be  inserted  the  follow- 
ing clause,  "  and  also  to  a  bill  of  the  said  plaintiff, 
"  agaijist  the  said  defendant,  in  a  plea  of  debt  upon 
'*  recognisance,  according  to  the  custom  of  our  court 
*'  before  us  to  be  exhibited ;'''*  otherwise  the  defen- 
dant, or  his  attorney,  is  not  bound  to  accept  a  de- 
claration in  debt  upon  such  recognisance  ^. 

We  have  already  seen  ^,  what  time  the  bail  are 
allowed  to  render  their  principal,  when  they  are 
proceeded  against  in  an  action  of  debt  upon  their 
recognisance.  We  have  also  seen  ^,  that  on  staying 

proceedings 

'*'  Bac.  Abr.  tit.  Execution,  y  R.    E.   15  Geo.  II.   Ante, 

G.    1  Lev.   225.    1  Sid.    339,  84. 

S.C.  ^Jnte,237. 

^  Ante,  152,  3.  »  Ante,  483. 


996  OF   SCIRE   FACIAS. 

proceedings,  in  an  action  of  debt  on  recognisance, 
the  bail  must  pay  the  costs  in  that,  as  well  as  the 
debt  and  costs  in  the  original  action,  though  they 
apply  \\dthin  the  time  allowed  them  for  surrender- 
ing the  principal:  And  on  that  account,  it  is  in 
general  more  adviseable  to  proceed  against  the 
bail,  by  action  of  debt  on  the  recognisance,  than 
by  sch'e  facias^  wherein  no  costs  are  allowed,  un- 
less they  appear  and  plead,  or  join  in  demurrer  ^. 
There  is  also  a  further  reason  for  proceeding  by  ac- 
tion of  debt  on  the  recognisance,  namely,  that  in 
such  an  action,  the  plaintiff  may  recover  damages 
for  the  detention  of  the  debt,  which  he  cannot  do 
in  scire  facias^.  But  as  a  copy  of  the  process  must 
be  served  in  debt,  if  the  bail  be  out  of  the  way,  or 
the  plaintiff  do  not  mean  to  give  them  notice,  he 
must  proceed  by  scire  facias  on  the  recognisance. 

A  scire  facias  against  the  bail  in  the  action,  is- 
sues out  of  the  court  in  which  the  action  was  de- 
pending ;  and  begins  by  stating  the  recognisance, 
after  which  the  judgment  is  set  forth,  prout  patet 
per  recordum :  It  then  states,  that  the  principal  has 
not  paid  the  debt  or  damages  recovered,  nor  ren- 
dered himself  to  the  prison  of  the  marshal  ^ ;  and 
concludes  by  requiring  the  sheriff  to  make  known 

to 

b  Stat.  8  &  9  W.  III.  c.  11.         ^  2  Salk.  439.    3  Salk.  320. 
§3.3  Bos.  8c  Pul.  14.  2  Ld.  Raym.  804,  S.  C, 

cS  Bur.  179  L 


II 


OF    SCIRE  F  AC  I  AS.  997 

lo  the  bail,  that  they  be  before  the  khig  at  TFest- 
minster,  on  a  day  certain,  (by  bill,  or  by  origlnalon 
a  general  return-day,  wheresoever,  &c.)to  shew  if 
they  have  or  know  of  any  thing  to  say  for  them- 
selves, why  the  plaintiff  ought  not  to  have  his  ex- 
ecution against  them,  for  the  debt  or  damages 
aforesaid,  (by  bill,  or  by  original  for  the  sum  ac- 
knowledged,) according  to  the  force,  form  and  ef- 
fect of  the  recognisance,  if  it  sail  seem  expedient 
for  him  so  to  do;  and  further,  he  ^.  On  a  recogni- 
sance of  bail,  the  scii'e  facias  against  the  principal 
is  in  hac  parte,  or  that  he  do  and  receive  what  the 
court  shall  consider  of  him  in  this  behalf;  but 
against  the  bail  it  is  in  ed  parte,  or  that  they  do 
and  receive  what  the  court  shall  consider  of  them 
in  that  behalf^.  And  where  a  scire  facias,  was 
brought  against  three  persons  as  bail,  upon  a  re- 
cognisance acknowledged  by  them  and  the  princi- 
pal jointly,  the  writ  abated;  because  this  being 
founded  on  a  record,  the  plaintiif  ought  to  set  forth 
the  cause  of  the  variance  from  the  record,  as  that 
one  was  dead  ^  :  But  if  an  action  be  brought  upon 
a  joint  bond,  against  three  only,  where  there  arc 
four  or  five  obligors,  there  the  defendant  ought  to 
shew  that  it  was  made  by  them  and  others  in  full 

life, 

e  Append.   Chap.    XLII.  §     599.  S.   C.   but    see    1    Ld. 
2,  £cc.  Raym.  532.  semb.  contra. 

f  1  Ld.  Raym.  393.   2  Salk.        k  Aleyn,  2 1 . 


998  OF   SCIRE   FACIAS. 

life,  not  named  in  the  writ ;  for  otherwise  the  court 
will  not  intend  that  the  bond  was  sealed  ^ 

By  the  recognisance  of  bail  in  error,  which  will 
be  more  fully  treated  of  in  the  next  chapter,  the 
plaintiff  or  plaintiffs  in  the  writ  of  error  become 
bound,  with  two  sufficient  sureties,  in  double  the 
sum  adjudged  to  be  recovered  by  the  former  judg- 
ment, to  prosecute  the  writ  of  error  with  effect,  and 
also  to  satisfy  and  pay,  if  the  judgment  be  affirm- 
ed, as  well  the  debt  or  damages  and  costs  adjudged 
upon  the  former  judgment,  as  also  all  costs  and 
damages  to  be  awarded  for  the  delay  of  execution '. 
Therefore  if  the  writ  of  error  be  nonprossed  or  dis- 
continued, or  the  judgment  affirmed,  the  defendant 
in  error  may  proceed  against  the  bail  upon  their 
recognisance,  by  action  of  debt  or  scire  facias  at 
his  election.  And  as  a  render  in  this  case  will  not 
excuse  the  bail '',  there  is  no  occasion  to  sue  out 
a  capias  ad  satisfaciendum,  in  order  to  proceed 
against  them. 

The  scire  facias  against  bail  in  error  should  be 
brought  in  the  same  court  where  the  recognisance 
was  taken,  unless  it  was  taken  in  the  Common 
Pleas,  and  then  the  scire  facias  may  be  brought 
either  in  that  court,  or  in  the  King's-Bench,  to 
which  the  record  is  supposed  to  be  removed '. 

This 

'f^AleynjSl.  XLII.5  6,  7.  28,  29. 

»  Stat.  3  Jac.  I.e.  8.  13  Car.  ^  r.  m.  5  W;  &  M.  (b). 

II.  Stat.  2.  c.  2.  §  9.  16  8c  ir  >  Lil.   Ent.    643.     3   Mod. 

Car.  II  c.  8.  §  3.  19  Geo.  III.  251.   1  Wils.  98. 
c,  70.  and  see  Append,  Chap. 


OF   SCIRE   FACIAS.  999 

This  writ  is  made  out  by  the  clerk  of  the  errors'"; 
and  on  a  recognisance  taken  in  the  King's-Bench, 
it  recites  not  only  the  recognisance,  but  the  condi- 
tion of  it,  and  the  affirmance  of  the  judgment",  &c. 
but  on  a  recognisance  taken  in  the  Common  Pleas, 
the  scire  Jacias  merely  states  the  recognisance,  and 
the  non-payment  of  the  sum  acknowledged  to  be 
due " ;  for  in  that  court,  the  condition  of  the  recog- 
nisance in  error  is  not  incorporated,  as  it  is  in  a  re- 
cognisance of  bail  on  a  capias  ad  responde7idu?7i^  but 
it  is  subscribed  by  way  of  defeasance  ;  so  that  the 
recognisance  and  condition  are  two  distinct  re- 
cords ^  :  And  besides,  if  the  condition  were  stated, 
it  would  be  necessary  to  state  also  the  affirmance  of 
the  judgment,  which  might  occasion  difficulty,  if 
the  bail  were  to  appear  and  plead  mil  tiel  record  of 
the  judgment  of  affirmance,  which  remains  in  the 
King's-Bench. 

A  scire  facias  upon  a  judgment  is  either  by  or 
against  the  same  or  different  parties.  As  between 
the  same  parties,  it  will  be  proper  to  treat  of  a 
scire  facias ^  in  the  following  cases ;  first,  after  a 
year  and  a  day ;  secondly,  after  a  writ  of  error 
brought  in  the  King's-Bench,  to  compel  the  plain- 
tiff in  error  to  assign  errors;  thirdly,  where  judg- 
ment 

n^  Barnes,  93.  o /gT.  §  5. 

"  Append.  Chap.  XLII.  ^6         r  l^arnes.  QS.  :s%9^ 


1000  OF   SCIRE  I-ACIA3. 

ment  is  given  in  covenant  or  annuity^  or  in  debt  oil 
bond  conditioned  for  the  payment  of  an  annuity, 
or  of  money  by  instalments,  or  for  the  performance 
ofcovcna?its,  and  damages  arise,  or  money  becomes 
payable,  on  the  same  securit)^  after  the  judgment; 
and  fourthly,  when  the  debt  or  damages  recovered 
are  to  be  levied  out  oi future  eft'ects,  or,  in  the  case 
of  an  executor  or  administrator,  de  bonis  propriis^ 
And  first,  of  the  scire  facias  after  a  year  and  a  day. 

At  common  law,  in  rt'a/ actions,  \vhere  land  was 
recovered,  the  demandant  after  the  year,  might  have 
taken  out  a  scire  facias  to  revive  the  judgment,  be- 
cause the  judgment  being  particular  ^z^oac^ the  land, 
with  a  certain  description,  the  law  required  that 
the  execution  of  that  judgment  should  be  entered 
upon  the  roll,  that  it  might  be  seen,  whether  exe- 
cution was  delivered  of  the  same  thing  of  which 
judgment  was  given;  and  therefore  if  there  was  no 
execution  appearing  on  the  roll,  a  scire  facias  issu- 
ed, to  shew  cause  why  execution  should  not  be 
awarded  '^  :  Besides,  in  real  actions,  if  execution 
was  not  sued  within  the  year,  a  scij'e  facias  lay  for 
the  land,  because  no  other  advantage  could  be  ta- 
ken of  the  judgment,  as  an  action  of  debt  could  not 
be  maintained  thereon  ^ 

But  if  the  plaintiff,  after  he  had  obtained  judgment 
in  n personal  v.ct'ion,  had  lain  by,  and  taken  no  pro- 
cess of  execution  within  the  year,  he  was  put  to  a 

new 

'1  Bac.  Abr.  lit.  Exenition.  H.        '"  3  Salk.  321. 


OF   SCIRE  FACIAS.  1001 

new  original  upon  his  judgment,  and  no  scire 
facias  was  issuable  ;  because  there  was  not  a  judg- 
ment for  any  pailicular  thing  in  the  personal  action, 
with  which  the  execution  could  be  compared: 
Therefore  after  a  reasonable  time,  which  was  a  year 
.and  a  day,  it  was  presumed  to  be  executed,  and  the 
law  allowed  him  no  scire  facias^  to  shew  cause  why  . 
there  should  not  be  execution;  but  if  the  party  had 
exceeded  his  time,  he  was  put  to  his  action  on  the 
judgment,  and  the  defendant  was  obliged  to  shew 
how  the  debt,  of  which  the  judgment  was  evidence, 
was  discharged  ^ 

To  remedy  this,  and  make  the  modes  of  pro- 
ceeding more  uniform  in  both  actions,  the  statute 
of  Westm.  2.  (13  Edw.  I.)  stat.  1.  c.  45.  gave  a 
scire  facias  to  the  plaintiff  in  a  personal  action  to 
revive  the  judgment,  where  he  had  omitted  to  sue 
execution  within  the  year  after  judgment  was  ob- 
tained ^  The  words  of  the  act  are  "  that  those 
"  things  which  are  found  enrolled  before  them  that 
"  have  the  record,  or  contained  in  fines,  whether 
"  they  be  contracts,  covenants,  obligations,  ser- 
"  vices  or  customs,  recognisances,  or  other  things 
*'  whatsoever  enrolled,  to  which  the  King's  court 
*'  may  lawfully  give  effect,  from  henceforth  shall 
"  have  such  force,  that  hereafter  it  shall  not  be 

"  necessary 

sBac.   Abr.  tit.    Execution,     S.  C. 
H.   but  see  2  Salk.  600.    7        t  Bac  Abr.  tit.  jE,xccution, 
Mod.  64.  2  Ld.   Raym.   806.     II. 

Vol.  IT.  "^  2X 


I0(>2  OF  SCIRE  FACIAS. 

*^'  necessary  to  implead  upon  them:  But  when  the 
"  plaintiff  comes  to  the  king's  court,  if  the  recog- 
''  nisance  or  fine  levied  be  recent,  that  is  to  say^ 
"  levied  within  the  year,  he  shall  forthwith  have 
"  a  writ  of  execution  of  the  same  recognisance. 
"  And  if  perchance  the  recognisance  were  made, 
"or  fine  levied,  of  a  longer  time  past,  the  sheriff 
"  shall  be  commanded,  that  he  make  known  to  the 
*'  party  of  whom  the  complaint  is  made,  that  he 
"  be  before  the  justices  at  a  certain  day,  to  shew  if 
"  he  has  any  thing  to  say,  why  such  matters  en- 
"  rolled,  or  contained  in  the  fine,  ought  not  to  have 
"'  execution  :  And  if  he  do  not  come  at  the  day,  or 
"  come  and  can  say  nothing  why  execution  ought 
"  not  to  be  made,  the  sheriff  shall  be  commanded 
"  to  cause  the  thing  enrolled,  or  contained  in  the 
•'  fine,  to  be  executed."  But  notwithstanding  this 
statute,  the  plaintiff  may  still  proceed,  if  he  think 
proper,  by  action  of  debt  on  the  judgment. 

It  hath  been  doubted,  whetljer  a  scire  facias  lay^ 
to  revive  a  judgment  in  ejectment,  after  a  year  and 
a  day,  either  by  the  common  law,  or  by  force  of  the 
above  statute ;  for  at  common  law,  this  was  look- 
ed upon  as  a  personal  action,  and  it  was  thought 
that  the  statute  extended  only  to  such  personal  ac- 
tions, in  which  debt  or  damages  were  recovered, 
and  not  to  provide  a  remedy  in  this  case,  since  at 
the  time  of  making  the  act,  the  possession  was  not 

recovered 


OF   SCIRE  FACIAS.  1003 

specovered  in  this  action :  But  it  seems  now  to  be 
settled,  and  is  confirmed  by  daily  practice,  that  a 
^?re  facias  lies  on  a  judgment  in  ejectment;  for 
the  words  of  the  act  are,  '*  whether  they  be  con- 
*'  tracts,  &c,  or  other  things  whatsoever  enrolled," 
which  comprehend  all  judgments,  and  give  the  like 
remedy  on  them  by  scire  facias^  as  the  demandant 
had  on  a  judgment  inarealactionatcommonlaw^ 
The  reason  why  the  plaintiff  is  put  to  his  scire 
facias  after  the  year,  is  because  where  he  lies  by 
so  long  after  judgment,  it  shall  be  presumed  that 
he  hath  released  the  execution,  and  therefore 
the  defendant  shall  not  be  disturbed,  without  be-, 
ing  called  upon,  and  having  an  opportunity  in 
court  of  pleading  the  release,  or  shewing  cause,  if 
he  can,  why  the  execution  should  not  go ".  And 
it  is  said,  that  if  the  plaintiff  delay  executing  a 
writ  of  inquiry,  till  a  year  after  interlocutory  judg- 
ment, he  cannot  do  it  after,  without  a  scire  facias  ^^ 
The  year  must  be  computed  from  the  day  of  sign- 
ing judgment  " ;  and  is  to  be  reckoned  by  calendar 
months,  and  not  by  terms  ^.  And  if  the  plaintifi 
sue  a  scire  facias  within  a  year  after  the  judgment^ 

he 

"  Bac.  Abr.  tit.  Executioiij  ^  2  Inst.  470. 

H.  The  sczVeycczas  in  this  case  ^^  12  Mod.   500,  scd  quaere^ 

should  go  against  the  terte-  whethei'  a  term's  notice  is  not 

nants,  as  well  as  tlie  defendant,  in  this  case  sufficient  ? 

1  Salk.  258.  and  see  Carth.  2.  ^  Barnes,  197. 

2  Salk.  600.  1  Ld.  Raym.  669.  y  l  Str.  301 .  and  see  6  Mod. 

3  Salk.  319.  S.C.  Run.  Eject.  14, 
426,  &c. 


1004  OF   SCIRE   FACIAS. 

he  cannot  afterwards  have  a  capias  within  the  year, 
till  h§  hath  a  new  judgment  in  the  scire  facias  '\ 

But  in  the  case  of  the  king,  there  need  not  be 
any  scire  facias  after  the  year^,  for  nullum  tempus 
occurrit  regi.  And  though  the  general  rule  be,  that 
the  plaintiff  cannot  in  other  cases  take  out  execu- 
tion after  the  year,  without  a  scire  facias,  yet  this 
rule  must  be  understood  with  the  following  restric- 
tions. 

Where  si  feri  facias  or  capias  ad  satisfaciendum 
is  taken  out  within  the  year,  and  not  executed,  a 
new  writ  of  execution  may  be  sued  out  at  any 
time  afterwards,  without  a  scire  facias;  provided 
the  first  writ  be  returned,  and  continuances  en- 
tered from  the  time  of  issuing  it '':  which  continu- 
ances may  be  entered  after  the  issuing  of  the  second 
writ,  unless  a  rule  be  made  upon  motion,  for  the 
proceedings  to  remain  in  statu  quo.  And  if  judg- 
iiienL  be  given,  and  no  execution  sued  out  within 
the  year,  yet  the  plaintiff  may  afterwards  enter  an 
award  of  an  elegit  on  the  roll  of  the  judgment,  as 
of  the  same  term  with  the  judgment,  and  thence 
Contimit'itdiOwnhyvicecomes  non  misit  breve:  And 
though  the  court  at  first  inclined  to  think,  that  an 
elegit  ought  to  be  actually  taken  out  within  the 
year,  yet  being  informed  by  the   clerks   of  the 

court, 

z  Rol.  Abr.  900.  1  Keb.  159.  S.  C  Carth.  283. 

a  2  Salk.  603.  Comb.  232.  S.  C.  3  Salk.  321. 

bCo.  Lit.  290.   b.  2   Inst.  1  Str.  100. 
471.  2  Leon.  77  ^Q.  1  Sid.  59. 


i\ 


OF  SCIRE  FACIAS.  1005' 

court,  that  it  had  been  the  practice  for  many  years 
to  make  such  an  entry,  &c.  it  was  said  to'be  the 
law  of  the  court,  and  they  ordered  the  execution 
to  standi 

If  the  plaintiff  have  judgment  with  a  cesset 
execution  or  stay  of  execution  for  a  year,  he  may 
after  the  year,  take  out  execution  without  a  scire 
facias  S  because  the  delay  is  by  consent  of  parties, 
and  in  favour  of  the  defendant ;  and  the  indulgence 
of  the  plaintiff  ought  not  to  be  turned  to  his  preju- 
dice :  But  if  the  plaintiff  do  not  take  out  execution, 
within  a  year  after  the  cesset  executio  is  deter- 
mined, he  must  sue  out  a  scire  facias  ^ 

So  if  the  defendant  bring  a  writ  of  error ^  and 
thereby  hinder  the  plaintiff  from  taking  out 
execution  within  the  year,  and  the  judgment  be 
affirmed,  the  plaintiff  in  error  nonsuited,  or  the 
writ  of  error  abated  or  discontinued,  the  de- 
fendant in  error  may  proceed  to  execution  after 
the  year,  without  a  scire  facias^ \  because  the 
writ  of  error  was  a  supersedeas  to,  the  execution, 
and  the  defendant  in  error  must  wait  till  it  be 
determined.  It  has  even  been  holden,  in  one 
case  s,  that  if  a  writ  of  error  be  brought  after  the 

year 

c  Carth.    283.  Comb.    232.  Eliz.  416.  Carth.  237.  6  Mod. 

S.  C.  288.  1  6alk.  322.  S.  C,  3  Salk, 

d  6  Mod.  288.    1  Salk.  322.  321. 

S.  C.  g  1  Rol.  Rep.  104.  Cro.  Jap-. 

e  2  Cromp.  102.  364.  S.  C. 

f  2  Inst.  471.  5  Co.  88.  Cro. 


1006  OF   SCIRE  PACIAS. 

year  is  elapsed,  and  thereupon  the  former  judg- 
ment is  affirmed,  such  affirmance  will  revive  the 
former  judgment,  and  enable  the  party  to  take  out 
execution,  w'lthoutascirejacias:  But  from  this  case 
it  seems,  that  if  the  plaintiff  in  error  be  nonsuited, 
or  the  writ  of  error  discontinued,  there  can  be  no 
execution  of  the  former  judgment,  without  a  scire 
facias. 

It  was  formerly  holden,  that  if  the  plaintiff  were 
restrained  by  injunction  out  of  Chancery  for 
a  year,  he  could  not  take  out  execution  after- 
wards, without  a  scire  facias^;  because  the 
courts  of  law  do  not  take  notice  of  Chancery  in- 
junctions,  as  they  do  of  writs  of  error:  besides, 
it  might  be  no  breach  of  the  injunction,  to  take 
out  execution  within  the  year,  and  continue  it 
dowii  by  vicecomes  non  misit  breve,  which  cannot 
be  done  in  the  case  of  a  writ  of  error.  But  in  a 
modern  case ',  where  it  appeared  that  the  whole 
delay  had  arisen  on  the  part  of  the  defendant,  by 
bills  in  chancery  for  injunctions,  and  by  obtain- 
ing time  for  payment,  &c.  the  court  were  unani- 
mous, that  this  rule,  of  reviving  a  judgment 
above  a  year  old  by  scire  facias,  before  execu- 
tion, which  was  intended  to  prevent  a  surprise 
upon  the  defendant,  ought  not  to  be  taken  ad- 
vantage of  by  one,  who  \\  as   so  far  from  being 

surprised 

'i  6  Mod.  288.  1  Salk.  322.        i  2  Bur.  660. 
S.  C.  1  Str.  301.  S.  P. 


I 


OF  SCIRE  FACIAS.  1007 

surprised  by  the  delay,  that  he  himself  had  been 
trying  all  manner  of  methods,  whereby  he  might 
delay  the  plaintiff;  and  therefore  they  discharged 
the  rule  for  setting  aside  the  execution,  with 
costs. 

The  scire  facias  upon  a  judgment  must  be  sued 
out  of  the  same  court  where  the  judgment  was 
given,  if  the  record  remains  there  *";  or  if  it  has 
been  removed,  out  of  the  court  where  the  record 
is.  If  the  judgment  be  under  seven  years  old,  the 
plaintiff,  we  have  seen ',  may  sue  out  a  scire  faciaSy 
as  a  matter  of  course,  without  any  rule  or  motion: 
If  it  be  above  seven  years,  but  under  ten^  he  can- 
not have  a  scire  facias,  without  a  side-bar  rule  °\  If 
it  be  above  ten  years  old,  but  under  twenty,  there 
must  be  a  motion  under  counsel's  hand,  supported 
by  an  affidavit  that  the  judgment  is  unsatisfied  " : 
And  if  the  judgment  be  of  more  than  twenty  years 
standing,  there  must  be  a  rule  to  shew  cause,  on  a 
similar  affidavit  °. 

A  scire  facias  upon  a  judgment,  after  a  year  and 
a  day,  states  the  judgment  recovered  by  the  plain- 
tiff, which  differs  according  to  the  nature  of  the 
action,  and  the  court  in  which  it  was  obtained : 
And  when  a  scire  facias  is  brought  on  a  judgment 

in 

k  Comb.  Dig.  tit.  Pleader,  3  Sty.  P.  R.  495 . 

L.  3.  "  Id.  ibid. 

i.//ra/f,  439.(o).  °  Blakeleyv.  Fi?icent,T.   35 

m  2  Salk.  598.  Comb.  356.  Geo.  III.  JVa(ers  v.  Hales,  E. 

S.  C.  and  see  CI.  Inst.   159.  37  Geo.  III. 


1008  OF  SCIRE  FACIAS. 

in  the  King's  Bench,  the  plaintiff  must  shew  where 
the  court  of  King's  Bench  was  held,  because  that 
court  is  ambulatory :  But  if  it  be  brought  upon  a 
judgment  in  the  Common  Pleas,  it  is  otherwise, 
because  that  court  is  confined  to  a  certain  place  ^ 
It  then  states,  that  although  judgment  be  thereup- 
on given,  yet  execution  of  the  debt  or  damages  still 
remains  to  be  made ;  and  commands  the  sheriff, 
to  make  known  to  the  defendant,  that  he  be  in 
court  at  the  return-day,  to  shew  why  the  plaintiff 
ought  not  to  have  execution  against  him  for  the 
debt  or  damages,  according  to  the  form  and  effect 
of  the  recovery,  &c  ''.  This  being  a  judicial  writ, 
must  pursue  the  nature  of  the  judgment:  therefore 
if  a  joint  judgment  be  obtained  against  two,  the 
scire  facias  must  be  against  both"^:  And  in  setting 
out  the  judgment,  if  there  be  a  material  variance, 
it  will  be  fatal,  on  mil  tiel  record. 

Where  a  scire  facias  is  brought  in  the  King's 
Bench,  upon  a  judgment  of  an  inferior  court,  it 
must  appear  in  the  writ  itself,  how  the  judgment 
came  into  the  King's-Bench,  whether  by  certio- 
rari^ or  by  writ  of  error,  because  the  execution  is 
different ' ;  for  if  it  came  in  by  certiorari^  the  scire 
facias  ought  to  shew  the  particular  limits  of 
the  inferior  jurisdiction,  and  pray  execution  within 

those 

PSSalk.  321.  S.  C. 

1  Append.  Chap.  XLII.  §        ^  3  Salk.  320.   1  Ld.  Raym- 

31,  &c.  216.  S.  C. 
'•2  Salk.  598.  Carth.  105.. 


OF   SCIRE   FACIAS.  100^ 

those  limits  ' :  But  if  the  judgment  be  removed  in- 
to the  King's-Bench  by  writ  of  error,  and  affirmed, 
the  party  may  have  execution  in  any  part  of  Eng- 
land; for  by  the  affirmance,  it  is  become  the  judg- 
ment of  the  King's-Bench  ". 

After  the  judgment  has  been  once  revived  hy  scire 
facias^  if  the  plaintiff  do  not  take  out  execution 
within  a  year  ^,  or  the  defendant  die  before  execu- 
tion '%  the  plaintiff  cannot  afterwards  take  it  out, 
without  a  new  scire  facias.,  or  action  on  the  judg— 
ment;  but  he  may  have  a  new  writ  without  motion, 
for  the  judgment  was  revived  before ''. 

Secondly:  As  the  parties  in  the  King's-Bench, 
have  no  day  in  court  given  to  either  of  them,  on 
the  removal  of  the  record  by  writ  of  error ^  the  de- 
fendant in  error  hath  no  other  way  of  compelling 
the  plaintiff  to  assign  his  errors,  than  by  suing  out 
a  writ  oi  scire  facias  qiiare  executionem  non,  &c.  ^; 
and  if  upon  such  writ,  the  plaiatiff  in  error  do  not 
assign  errors,  but  suffer  judgment  to  pass  by  de- 
fault upon  scire  feci,  or  two  nihils,  no  errors  after- 
wards 

t  But  see   the   statutes    19  Blac.  532.  ^/z/e,  Chap. XVII. 

Geo.  III.  c.  70.   and  33  Geo.  "Append.  Chap.   XLII.  § 

III.  c.  68.  by  which  execution  43,  &c.    1  Ld.  Raym.  216.    3 

may  be  issued  in  certain  cases,  Salk.  320.  S.  C.  and  see  3  T. 

out  of  the  courts  at  IVestmin-  R.  657. 

«?er,  upon  judcrments  obtained  ^  2  Cromp.    103.    Imp.   K. 

in  inferior  courts,  against  the  B.  382. 

person  or  effects  of  the  defen-  w  2  Salk.  598. 

dant,  in  like  manner  as  upon  ^  Id.  ibid. 

juds^ments    obtained     in    the  y  Godb.  S8.  3  Leon.  197 
<!ourts  above  :   And  see    1  H . 

Vol.  II.  3Y 


lOlG  OP   SCIRE  FACIAS. 

wards  assigned  shall  prevent  execution*.  This 
writ,  and  the  proceedings  thereon,  will  be  more 
fully  treated  of  in  the  next  chapter. 

Thirdly y  with  respect  to  demands  arising  after 
the  judgment,  it  is  said  to  have  been  adjudged, 
that  in  covenants  perpetual,  as  to  repair,  &c.  if  they 
be  once  broken,  and  an  action  of  covenant  brought, 
and  a  recovery  had  thereon,  if  they  be  afterwards 
broken,  the  plaintiff  shall  have  a  scire  facias  upon 
the  judgment,  and  need  not  bring  a  new  writ  of 
covenant  ^ 

Upon  a  writ  of  annuity^  the  old  books  differ  as 
to  the  necessity  of  a  scire  facias^  in  order  to  have 
execution  for  subsequent  arrears.  In  some  books 
it  is  said,  that  if  judgment  be  given  in  a  writ  of  an- 
niiity^  the  plaintiff  shall  have  execution,  within  the 
year  after  every  day  of  payment,  hy  Jieri  facias  or 
elegit,  though  it  be  many  years  after  the  judg- 
ment '' ;  but  other  books  seem  to  hold  a  different 
doctrine,  and  that  for  arrearages  incurred  after  the 
judgment,  it  is  necessary  to  have  a  scire  facias,  in 
order  that  the  defendant  may  have  an  opportunity 
of  pleading  payment,  or  other  matter  in  bar  of  ex- 
ecution ^ 

2  Carth.  40,  4 1 .  «  1 1  Hen.  IV.  34.  Bro.  Abr. 

a  Crc.   Eliz.   3.  but  see  3  tit.  jinnuity, -pi.  17.  tit.    Scire 

Leon.  51.  facias,  pi.  75.  Co.  Lit.  145.   2 

">  21  Edvv.  III.  22.  2  Inst.  Co.  37.  6  Co.  45.  Jenk.  51,2. 

471.  1  Rol.  Abr.  900.  2  Blac.  1  Rol.  Abr.  229.   1  Salk.  258 

Kep.  844.  2  Salk.  600, 


OF  SCIRE  FACIAL.  .1011 

ecution.  And  this  latter  opinion  is  in  some  mea- 
sure confirmed  by  the  language  of  the  judgment, 
which  is  to  recover  the  annuity,  and  arrearages  of 
the  same,  as  well  before  the  bringing  of  the  action 
as  afterwards,  up  to  the  time  when  judgment  is 
given*^ ;  but  the  amount  of  the  arrearages  subse- 
quent to  the  judgment  not  being  ascertained,  it 
seems  to  be  necessary  to  have  a  scire  facias^  to 
warrant  an  execution. 

In  an  action  of  (/e-f^?  on  bond,  conditioned  for  the 
payment  of  an  annuity,  after  judgment  had  been 
once  obtained,  it  does  not  seem  to  have  been  for- 
merly necessary  to  have  a  scire  facias,  to  warrant 
an  execution  for  subsequent  arrears ;  but  an  exe- 
cution might  have  been  sued  out  for  such  arrears, 
without  a  scire  facias,  at  any  time  within  a  year  af- 
ter they  were  incurred,  or  even  afterwards,  if  a 
writ  of  execution  had  been  previously  taken  out, 
and  was  properly  continued  down  *".  Under  such 
an  execution  however,  the  plaintiff  was  not  allowed 
to  levy  the  whole  penalty,  but  only  the  arrears; 
and  therefore  where  he  levied  the  whole  penalty, 
the  court  made  a  rule  upon  him  to  refund  the 
overplus,  beyond  what  would  satisfy  the  arrears; 
and  that  judgment  should  stand  as  a  security,  with 
liberty  to  take  out  execution,  as  future  arrears 

should 

•iCo.  Ent.  50.  Cro-  Car.  «  2  Blac.  Rep.843.  and  se« 

436.  Ante,  842.  1  H.  Blac.  297. 


1012  OF   SCIRE  FACIAS. 

should  arise  ^.  And  now,  as  a  bond  conditioned  for 
the  payment  of  an  annuity  is  held  to  be  within  the 
statute  8  &  9  W.  III.  c.  1 1.  ^  8  '^.  it  seems  neces- 
sary to  proceed  by  scire  facias  on  that  statute,  for 
subsequent  arrears. 

In  an  action  of  debt  on  bond,  conditioned  for  the 
payment  of  money  by  instalments^  where  the  pro- 
ceedings are  stayed  on  payment  of  one  or  more 
of  the  instalments,  judg-ment  is  entered  as  a  secu- 
rity for  the  remainder,  with  a  stay  of  execution  till 
they  become  due ;  and  in  such  case,  there  seems 
to  be  no  necessity  for  a  scire  facias,  if  execution  be 
taken  out  within  a  year  after  each  default  ^ 

Where  judgment  is  entered  in  an  action  of  debt 
on  bond,  or  on  any  penal  sum,  for  non -performance 
of  covenants  or  agreements  in  any  indenture,  deed 
or  writing  contained,  we  may  remember ',  that  by 
the  statute  8  &.  9  /r.  III.  c.  11.  ^  8.  it  remains  as 
a  security  to  answer  such  damages  as  shall  or 
may  be  sustained,  for  further  breach  of  any  covenant 
or  covenants  in  the  same  indenture,  deed  or  wri- 
ting contained;  and  the  statute  further  directs,  that 
"  the  plaintiff  may  have  a  scire  facias  upon  the  said 
''  judgment  against  tlie  defendant,  or  against  his 
^*  heir,  tertenants,  executors  or  administrators, 
*'  suggesting  other  breaches  of  the  said  covenants 

''or 

f  2  Blac.  Rep.  1111.  Rep.  706.  958.  Bames,  281. 

%Jnte,5\\.  Jnte,  485. 

^  2  Str.  814.  957.   2  Blac  '^  j^niey  51©. 


OF  SCIRE  FACIAS. 


1013 


or  agreements,  and  to  summon  him  or  them  re- 
spectively to  shew  cause,  why  execution  should 
not  be  had  or  awarded  upon  the  said  judgment''; 
upon  which  there  shall  be  the  like  proceeding, 
as  in  the  action  of  debt  upon  the  said  bond  or 
obligation,  for  assessing  damages  upon  trial  of 
issues  joined  upon  such  breaches,  or  inquiry 
thereof  upon  a  writ  to  be  awarded  in  manner  as 
therein  directed;  and  that  upon  payment  or  satis- 
faction of  such  future  damages,  costs  and  charges, 
all  further  proceedings  on  the  said  judgment  are 
again  to  be  stayed,  and  so  toties  quoties^  and  the 
defendant,  his  body  lands  or  goods,  shall  be  dis- 
charged out  of  execution." 
Fourthly^  with  regard  \.o  future  effects,  it  is  enac- 
ted by  the  statute  5  Geo,  II.  c.  30.  §  9.  that  "  in  case 
"  any  commission  oi  bankruptcy  shall  issue  against 
"  any  person  or  persons,  who  shall  have  been  dis- 
*'  charged  by  virtue  of  that  act,  or  shall  have  com- 
*'  pounded  with  his,  her  or  their  creditors,  or  de- 
"  livered  to  them  his,  her  or  their  estate  or  effects, 
"  and  been  released  by  them,  or  been  discharged 
"  by  any  act  for  the  relief  of  insolvent  debtors,  then 
"  and  in  either  of  those  cases,  the  body  and  bodies 
"  only  of  such  person  and  persons  conforming  as 
"  therein  mentioned,  shall  be  free  from  arrest  and 
"  imprisonment,   by  virtue  of  that  act;  but  the 

^''future 


^  Append.  Chap.  XLII.  §  46. 


1014  0F   SCIRE  FACIAS. 

'■^future  estate  and  eflfects  of  every  such  person  and 
"  persons  shall  remain  liable  to  his,  her  or  their 
*' creditors,  as  before  the  making  of  that  act; 
"  (the  tools  of  trade,  necessary  household  goods 
"  and  furniture,  and  necessary  wearing  apparel  of 
"  such  bankrupt,  and  his  wife  and  children,  only 
*'  excepted,)  unless  the  estate  of  such  person  or 
"  persons,  against  whom  such  commission  shall  be 
"  awarded,  shall  produce  clear  after  all  charges, 
"  sufficient  to  pay  every  creditor  under  the  said 
"  commission,  jifteeii  shillings  in  the  pound  for 
*'  their  respective  debts."  Upon  this  statute  it  has 
been  holden,  that  though  a  prior  commission  be 
superseded  by  consent,  a  second  bankruptcy  does 
not  protect  future  effects,  unless  fifteen  shillings  in 
the  pound  are  paid  under  the  second  commission '. 
The  judgment  against  a  bankrupt,  under  the 
above  circumstances,  is  general,  if  given  before  he 
has  obtained  his  certificate  under  the  second  com- 
mission ;  or  if  given  afterwards,  it  may  be  special, 
against  his  future  estate  and  effects,  with  the  ex- 
ceptions in  the  statute.  On  a  general  judgment,  the 
plaintiff  it  seems  cannot  sue  out  a  special  execu- 
tion against  the  future  effects  of  the  bankrupt,  such 
an  execution  not  being  warranted  by  the  judg- 
ment "".  But  where  the  defendant,  having  given  a 
warrant  of  attorney  to  confess  a  judgment,  took  the 

benefit 

'  Doug.  46.  «  1  T.  R.  80. 


OF   SCIRE  FACIAS.  1015 

benefit  of  an  insolvent  act,  and  then  became  bank- 
rupt and  obtained  his  certificate ;  after  which  the 
plaintiff  entered  up  a  general  judgment,  and  sued 
out  a  general  execution  against  his  effects;  the  court 
of  Common  Pleas  held  the  proceedings  to  be  regu- 
lar, and  that  no  scire  facias  was  necessary,  to  autho- 
rize either  the  judgment  or  execution;  no  dividend 
appearing  to  have  been  made,  nor  any  goods  taken 
under  the  execution  more  than  the  plaintiff  was 
entitled  to ". 

Where  a  writ  of  scire  facias  is  necessary,  as 
where  the  judgment  has  been  given  more  than  a 
year,  and  the  defendant  in  the  mean- time  has  been 
taken  in  execution,  and  discharged  upon  obtain- 
ing his  certificate,  the  scire  facias  should  state  the 
judgment,  and  the  circumstances  which  make  the 
defendant's  future  estate  and  effects  liable  to  satisfy 
it,  as  that  he  was  before  a  bankrupt,  or  had  com- 
pounded with  his  creditors,  &.c. ;  and  in  particular, 
it  is  necessary  to  aver,  that  the  bankrupt's  estate 
had  not  paid  fifteen  shillings  in  the  pound  under 
the  second  commission,  at  the  time  of  suing  out  the 
writ:  It  then  states,  that  the  defendant  has  become 
seised  or  possessed  of  some  estate  or  effects ;  and 
commands  the  sheriff,  that  he  make  known  to  the 
defendant,  to  appear  in  court  at  the  return-day,  to 
shew  why  the  plaintiff  should  not  have  execution 
•f  the  debt  or  damages,  to  be  levied  of  the  estate 

and 
«3Bos.  &Pul.  lis. 


1016  OF  SCIRE  FACIAS. 

and  effects,  whereof  the  defendant  hath  become 
seised  or  possessed,  since  the  obtaining  of  his 
certificate  under  the  last  commission,  except  his 
tools,  &c. 

By  the  Lords'  act,  (32  Geo,  11.  c.  28.  )  17.  20.) 
we  may  remember",  that  "notwithstanding  any 
"  discharge  obtained  by  virtue  of  that  act,  for  the 
"  person  of  any  prisoner,  the  judgment  obtained 
"  against  every  such  prisoner  shall  continue  and  re- 
"  main  in  force,  and  execution  may  at  any  time  be 
"  taken  out  thereon,  against  the  lands,  tenements, 
"  rents  or  hereditaments,  goods  or  chattels  of  any 
"  such  prisoner,  other  than  and  except  the  neces- 
"  sary  wearing  apparel  and  bedding  for  himself 
"  and  family,  and  the  necessary  tools  for  the  use  of 
*'  his  trade  or  occupation,  not  exceeding  10/.  in 
"  value  in  the  whole,  as  if  he  had  never  been  be- 
"  fore  arrested,  taken  in  execution,  and  released 
"  out  of  prison."  And  it  has  been  determined,  that 
the  effects  acquired  by  an  insolvent,  after  his  dis- 
charare  under  the  34  Geo.  III.  c.  69.  are  liable  to 
be  taken  in  execution,  for  a  debt  due  before  •*. 

On  a  general  judgment,  obtained  against  a  de- 
fendant, before  his  discharge  under  an  insolvent 
act,  no  special  execution  can  be  taken  out,  with- 
out first  suing  out  a  scire  facias"^.  And  where  a 

warrant 

o  Jnte,  978.  1  1  T.  R.  79. 

p  6  T.  R.  366.  Ante,  978. 


OF  SCIRE   FACIAS.  1017 

warrant  of  attorney  was  given,  before  the  passing 
of  an  insolvent  act,  of  which  the  defendant  was  en- 
titled to  take  advantage  by  pleading  in  discharge 
of  his  person,  &c.  it  was  holden,  that  a  general 
judgment  signed  by  virtue  of  such  warrant  of  at- 
torney, after  the  defendant's  discharge,  would  not 
warrant  a  special  execution  under  the  act ' .  But  it 
seems  that  in  this  case,  a  general  execution,  pur- 
suing the  judgment,  would  be  regular;  and  that  a 
scire  facias  is  unnecessary  ^ 

In  the  case  of  an  executor  or  administrator^  the 
judgment  against  him  is  either  upon  the  plaintiff's 
confession  of  the  plea  of  plene administravit,  or plene 
administravit  prceter^  for  the  debt  or  damages  and 
costs,  to  be  levied  as  to  the  whole  or  in  part,  of  the 
goods  of  the  testator  or  intestate,  which  shall  after- 
wards come  to  the  hands  of  the  defendant  to  be 
administered;  which  is  called  a  judgment  of  assets 
quando  acciderint :  or  it  is  after  a  verdict,  demur- 
rer, or  issue  of  nul  tiel  record^  or  by  confession  of 
the  defendant,  or  nihil  dicit,  for  the  debt  or  da- 
mages and  costs,  to  be  levied  of  the  goods  of  the 
testator  or  intestate,  in  the  hands  of  the  defendant, 
if  he  hath  so  much  thereof  in  his  hands  to  be  ad- 
ministered, and  if  not,  then  the  costs  to  be  levied 
of  his  own  proper  goods  ^ 

In 

«•  1  T.  R.  79.  B.  3  Bos.  &  Pul.  185.  C.  P. 

*Per  Cur.  H.  41  G.  III.  K.         '  4  T.  R.  648.  7  T.  R.  359. 
Vol.  II.  2Z 


1018  OF  SCIRE  FACIAS. 

In  the  first  case,  the  judgment  appears  to  be 
founded  on  the  opinion  of  the  court  in  Mary  Ship- 
ley'* s  case  ",  where  it  was  held,  that  upon  a  plea  of 
plene  adininistravit^  the  plaintiff  may  have  judgment 
for  his  debt  presently,  for  thereby  the  defendant 
confesses  the  debt;  but  he  cannot  have  execution, 
until  the  defendant  have  goods  of  the  deceased, 
when  he  may  either  sue  out  a  scire  facias  ^,  or  bring 
an  action  ol  debt  upon  the  judgment,  suggesting  a 
devastavit:  And  though  this  opinion  was  question- 
ed, in  the  case  oi  Dorchester  \.  IVehh '",  yet  in  a  sub- 
sequent case  "^  it  was  established,  and  has  ever  since 
been  adhered  to.  So  in  debt  against  an  heir,  if  he 
plead  nothing  by  descent,  the  plaintiff  may  have 
judgment  presently,  and  a  scire  facias  Vvdien  assets 
descend ''.  But  by  taking  judgment  of  assets  quando 
acciderint^  the  plaintiff  admits  that  the  defendant 
has  fully  administered  to  that  time ;  and  therefore 
on  a  scire  facias  y  or  action  of  debt  on  the  judgment, 
suggesting  a  devastavit,  the  court  will  not  allow  the 
plaintiff  to  give  any  evidence  of  effects  come  to 
the  defendant's  hands  before  the  judgment  ^  And 
for  the  same  reason,  the  scire  facias  on  a  judgment 

of 

"8  Co.  134.  2  Keb.    606.   621.   631.    666. 

''Append.Chap.XLII.§48.  671.  S.  C.  Hob.   199.  S.  P. 

w  Cro.  Car.  372.  and  see  7  T.  R.  29. 

X  Mlson  V.  J^'oell  and  others,  v  8  Co.  1 34. 

2   Saund.    226.     1    Sid.    448.  ^  Bui.  JV7.  P77.  169. 
1  Lev.  286.    1  Vent.  94,  5. 


OF  SCIRE  FACIAS.  1019 

of  assets  quando  acciderint^  must  only  pray  execu- 
tion of  such  assets  as  have  come  to  the  defendant's 
hands  since  the  former  judgment;  and  if  it  pray 
execution  of  assets  generally,  it  cannot  be  support- 
ed *.  Where,  upon  a  suggestion  of  assets,  a  scire 
Jaciaswas  taken  out,  and  assets  were  found  for  part, 
judgment  was  given  to  recover  so  much  immedi- 
ately, and  the  residue  of  assets  infuturo  ^. 

In  proceeding  upon  a  judgment  against  an  exe- 
cutor or  administrator,  after  verdict,  &c.  it  is 
usual  for  the  plaintiff  to  sue  out  a  fieri  facias  de 
bonis  testatoris,  si,  ^c.  et  si  non,  de  bonis  propriis., 
according  to  the  judgment  •=;  upon  which  the 
sheriff,  if  he  cannot  execute  the  writ  according 
to  its  tenor,  either  returns  nulla  bona  generally,  or 
nulla  bona  and  a  devastavit  by  the  defendant  *.  On 
the  latter  return,  the  plaintiff,  we  have  seen  ^,  may 
have  execution  immediately  against  the  defendant, 
by  capias  ad  satisfaciendurn,  ov  fieri  facias  de  bonis 
propriis:  But  on  the  former,  the  ancient  course  was 
to  issue  a  special  writ,  for  the  sheriff  to  inquire 
whether  the  defendant  had  wasted  any  of  the  goods 
of  the  deceased  ^:  And  if  a  devastavit  were  found, 
and  returned  by  the  sheriff,  a  scire  facias  issued  for 
the  defendant  to  shew  cause,  why   the  plaintiff 

should 

>  6  T.  R.  1.  c  Cro.  Eliz.  887. 

^   Ferryman    8c    Westwood,  ^  Thes.  Bvcv.  116,  17. 

cited    in  Vent.  95.  ?c   1   Sid.  «  Anic^  93". 

448.  'Cro.  Eliz.  859.  887. 


1020  OF   SCIRE  FACIA-S. 

should  not  have  execution  de  bonis  propriis;  to 
which  scire  facias  the  defendant  might  appear,  and 
plead  plene  administravit  ^.  But  now,  for  the  sake 
of  expedition,  the  inquiry  and  scire  facias  are  made 
out  in  one  WTit,  which  is  called  a  scire  fieri-mc\[iiry\ 
reciting  the  judgment,  fieri  facias,  and  return  of 
nulla  bona,  and  after  suggesting  a  devastavit,  com- 
manding the  sheriff  to  cause  the  debt  or  damages 
and  costs  to  be  made  of  the  goods  of  the  testator 
or  intestate,  if,  &c. ;  and  if  not,  then  if  it  shall 
appear  by  inquisition'',  that  the  defendant  hath 
wasted  the  goods  of  the  deceased,  to  give  notice 
to  the  defendant,  to  appear  in  court  at  the  return 
of  the  writ,  to  shew  cause  why  the  plaintiff  ought 
not  to  have  execution  de  bonis  propriis ':  And  there 
must  be  the  same  notice  of  executing  such  writ,  as 
of  a  common  writ  of  inquiry  \  This  method  how- 
ever, though  preferable  to  the  old  one,  is  seldom 
pursued  at  this  day ;  as  the  plaintiff  is  not  allowed 
any  costs,  unless  the  defendant  appear  and  plead, 
or  there  be  a  joinder  in  demurrer:  And  therefore 
it  is  more  usual,  on  the  return  of  nulla  bona  to  the 
fieri  facias,  to  bring  an  action  of  debt  on  the  judg- 
ment, suggesting  a  devastavit. 


The 

B  Cro.  Eliz.  859.  887.   Lil.  XLII.  §  47. 

Ent.  667.  J  Gilb.  Cas.  95.    I  Str.  235. 

h  Append. Chap. XLII.§  69.  623.    2  Ld.    Raym.    1382.  8 

i  Thes.  Brev.  236,  &c.  Lil.  Mod.  366.    S.  C.  Cas.  Pr.  C 

Ent.    666.    Append.    Chap.  P.  1. 


OF   SCIRE   FACIAS.  1021 

The  scire  facias^  upon  a  change  of  parties,  is 
governed  by  the  rule  laid  down  in  the  case  of  Pen- 
oyer  v.  Brace "",  that  where  a  new  person  is  to  be 
benefited  or  charged  by  the  execution  of  a  judg- 
ment, there  ought  to  be  a  scire  facias  to  make  him 
party  to  the  judgment;  but  w^here  the  execution 
is  not  beneficial  or  chargeable  to  a  person,  who 
was  not  party  to  the  judgment,  a  scire  facias  is  un- 
necessary. On  this  rule  depend  the  cases  of  mar- 
riage, bankruptcy,  and  death:  and  first,  o^ marriage. 

If  Si  feme-sole  obtain  judgment,  or  there  be  judg- 
ment against  her,  and  she  afterwards  marry  before 
execution,  there  must  be  a  scire  facias  for  or  against 
husband  and  wife,  in  order  to  execute  the  judg- 
ment. And  in  a  modern  case  ^  it  was  holden,  that 
the  husband  cannot  have  execution  for  the  costs, 
on  a  plea  of  coverture  found  for  his  wife,  sued  as 
2i  feme -sole,  without  a  scire  facias  ;  it  being  a  max- 
im, that  a  person  not  a  party  to  the  record,  cannot 
be  benefited  or  charged  with  the  process,  without 
a  scire  facias.  In  a  scire  facias  by  baron  and  feme, 
upon  a  judgment  recovered  by  the  feme  clum  sola, 
the  plaintiffs  should  state  their  marriage "' ;  but 
they  need  not  allege  it  with  a  venue,  this  being 
only  matter  of  surmise,  to  which  no  venue  is  ne- 
cessary ". 

If 

k  1  Ld.  Raym.  245.   I  Salk.  "  2  Str.  775.  2  Ld.  Raym. 

319,  20.  S.  C.  and  see  2  Inst.  1504.   1  Barnard.  K.  B.   16. 

471.  2  Ld.  Raym.  768.  S.  C.  and  see  2  H.  Blac.  14" 

»  Doug.  637.  7  T.  R.  343. 

"^  Append.  Chap.  XLII.  %  50. 


1022  OF   SCIRE  FACIAS. 

If  husband  and  wife  obtain  judgment,  for  the 
proper  debt  of  the  wife,  and  afterwards  the  wife 
die  before  execution,  the  husband  alone  may  have 
a  scire  Jacias,  without  taking  out  administration  " ; 
for  by  the  judgment,  the  nature  of  the  debt  is  al- 
tered, and  it  is  become  a  debt  to  the  husband.  So 
if  execution  be  awarded  to  the  husband  and  wife, 
on  a  judgment  obtained  by  the  wife  clum  sola,  for 
her  own  proper  debt,  the  husband  alone  may  have 
a  scire  Jacias  after  his  wife's  death  °;  for  though  the 
award  of  execution  does  not  alter  the  nature  of  the 
debt,  yet  it  alters  the  property,  and  vests  it  in  the 
husband  jointly  with  his  wife.  And,  in  like  manner, 
if  judgment  be  obtained  against  stjeme-sole,  and 
she  marry,  and  then  the  plaintiff  sue  out  a  scire  Ja- 
cias against  husband  and  wife  p,  and  have  judgment 
quod  haheat  executionem  against  both,  and  after- 
wards the  wife  die,  the  plaintiff  may  sue  out  a  scire 
facias^  and  have  execution  against  the  husband  ''. 
But  if  husband  and  wife  obtain  judgment,  for  a 
debt  due  to  the  wife  as  executrix,  and  then  the 
wife  die  before  execution,  the  husband  cannot 
have  2l  scire  Jacias  upon  the  judgment '^;  for  though 
he  was  privy  to  the  judgment,  he  shall  not  have 

the 

n  Cro.  Eliz.  844.     1    Sid.  §  51. 

337.  1  Mod.  179.  q  3    Mod.    186.    Carth.    30. 

o  1  Salk.  116.  Carth.   415.  Comb.  103.  S.  C. 

Comb.  455.  Skin.  682.  S.  C.  ^  Cro.  Car.   207.    227.   W, 

p  Append.  Chap.  XLTI.  Jon.  248.  S.  C. 


OF   SCIRE  FACIAS.  1023 

the  thing  recovered,  but  it  belongs  to  the  succeed- 
ing executor  or  administrator. 

Secondly,  of  bankruptcy.  If  the  plaintiff  become 
bankrupt,  after  interlocutory  and  before  final  judg- 
ment', or  after  final  judgment  and  pending  a  writ 
of  error ',  his  assignees  may  proceed  to  final  judg- 
ment or  affirmance,  in  the  bankrupt's  name.  And 
where  the  plaintiff  became  bankrupt  after  j  udgment, 
and  a  writ  of  error  allowed,  it  was  determined  that 
his  assignees  could  not  sue  out  a  scire  facias  in  their 
own  names,  to  compel  an  assignment  of  errors, 
but  must  go  on  with  the  writ  of  error  in  the  bank- 
rupt's name,  till  judgment".  It  was  formerly 
holden,  that  if  the  plaintiff  became  bankrupt,  after 
final  judgment  or  affirmance,  and  before  execution, 
the  assignees  must  have  sued  out  a  scire  facias^. 
And  a  scire  facias  by  the  assignees  of  a  bankrupt, 
stating  that  he  became  bankrupt,  within  the  true 
intent  and  meaning  of  the  statutes,  &c.  and  that 
his  effects  were  afterwards  in  due  manner  assigned 
to  the  plaintiffs,  was  deemed  sufficiently  certain; 
without  alleging  the  particular  requisites  neces- 
sary to  support  a  commission,  or  that  the  party 

was 

»  2  Wils.  372.  2  T.  R.  45.  where  a  scire  facian 

M  T.  R.  463.  2  T.  R.  45.  issued,  upon  a  bankruptcy  hap- 

i^  1  T.  R.  463.  pening  between    interlocutory 

V  1  Mod.  93.  1  Vent.  173.  and  final  judgment. 
S.C.and  see  2  Wils.  372, 78. 


1024  OF   SCIRE   FACIAS. 

was  declared  a  bankrupt,  or  his  effects  assigned  by 
deed,  and  without  making  a  profert  in  curia  of  the 
deed  of  assignment  '^  But  where  the  plaintiff  be- 
came bankrupt,  after  he  had  revived  the  judgment 
by  scire  facias^  the  court  ordered  the  special  mat- 
ter to  be  entered,  to  entitle  his  assignee  to  the  bene- 
fit of  the  judgment  on  the  scire  facias^  without  bring- 
ing a  new  scire  facias ".  And  in  a  late  case '',  where 
the  plaintiff  became  bankrupt  between  interlocu- 
tory and  final  judgment,  and  sued  out  execution 
in  his  own  name,  the  court  refused  to  set  aside  the 
proceedings. 

Thirdly,  oi  death;  which  may  be  considered  ei- 
ther as  it  happens  before,  or  after  final  judgment. 
At  common  law,  the  death  of  a  sole  plaintiff  or 
defendant,  at  any  time  before  final  judgment, 
would  have  abated  the  suit.  But  now,  by  the  sta- 
tute 17  Car.  II.  c.  8.  for  the  avoiding  of  unneces- 
sary suits  and  delays,  it  is  enacted,  that  "  in  all 
"  actions  personal,  real  or  mixed,  the  death  of  ei- 
*'  ther  party,  between  the  verdict  and  the  judgment  ^ 
"  shall  not  be  alleged  for  error;  so  as  such  judg- 
"  ment  be  entered  within  two  terms  after  the  ver- 
*'  diet."  Upon  this  statute,  the  judgment  is  en- 
tered for  or  against  the  party,  as  though  he  were 
alive  ^;  and  it  should  be  entered,  or  at  least  signed^, 

within 

^v  2  T.  R.  45.  and  see  Append,    y  3  T.  R.  437. 
Chap.  XLII.  §  52.  ^  1  Salk.  42. 

s  5  Mod.  88.  a  1  Sid.  385.  Barnes,  261 


or   SCIRE  FACIAS.  1025 

within  two  terms  after  the  verdict.  But  there  must 
be  a  scire  facias  to  revive  it,  before  execution  ^  : 
And  such  scire  facias^  pursuing  the  form  of  the 
judgment,  should  be  general  %  as  on  a  judgment 
recovered  by  or  against  the  party  himself. 

By  a  subsequent  statute  '^,  it  is  enacted,  that  "  in. 
*'  all  actions  to  be  commenced  in  any  court  of  re- 
*'  cord,  if  the  plaintiff  or  defendant  happen  to  die, 
*'  after  interlocutory,  and  before  final  judgment,  the 
"  action  shall  not  abate  by  reason  thereof,  if  such 
"  action  might  have  been  originally  prosecuted  or 
*'  maintained  by  or  against  the  executors  *or  ad- 
*'  ministrators  of  the  party  dying;  but  the  plaintiff, 
"  or  if  he  be  dead  after  such  interlocutory  judg- 
"  ment,  his  executors  or  administrators,  shall  and 
**  may  have  a  scire  facias  against  the  defendant,  if 
*'  living  after  such  interlocutory  judgment,  or  if 
"  he  died  after,  then  against  his  executors  or  ad- 
*'  ministrators,  to  shew  cause  why  damages  in  such 
"  action  should  not  be  assessed  and  recovered  by 
"  him  or  them  ^.  And  if  such  defendant,  his  exe- 
*'  cutors  or  administrators,  shall  appear  at  the  re- 
*'  turn  of  such  writ,  and  not  shew  or  allege  any 
*'  matter  sufficient  to  arrest  the  final  judgment,  or 
"  being  returned  warned,  or  upon  two  writs  of 
"  scire  facias,  it  be  returned  that  the  defendant,  his 

executors 


Chap.    XLir. 


«>  1  Wils.  302. 

§6. 

^2  Ld.  Riiym.  1280. 

e  Append. 

<*Stat.8  8c  9  VV.III.c. 

11.       §  53,  &c. 

Vol.  II. 

%A 

1026  OF   SCIRE  FACIAS. 

"  executors  or  administrators,  had  nothing  where- 
"  by  to  be  summoned,  or  could  not  be  found  in  the 
"  county,  shall  make  default,  that  thereupon  a  writ 
*^  of  inquiry  of  damages  shall  be  awarded;  which 
"  being  executed  and  returned,  judgment  final 
"  shall  be  given  for  the  said  plaintiff,  his  executors 
"  or  administrators,  prosecuting  such  writ  or  writs 
"  of  scire  facias^  against  such  defendant,  his  exe- 
*'  cutors  or  administrators,  respectively  ^"  This 
statute  has  been  held  not  to  extend  to  cases  where 
the  party  dies  before  interlocutory  judgment; 
though  it  be  after  the  expiration  of  the  rule  to 
plead  ^. 

Where  either  party  dies  after  interlocutory  judg- 
ment, and  before  the  execution  of  the  writ  of  in- 
quiry, the  scire  facias  upon  this  statute  ought  to 
be  for  the  defendant,  or  his  executors  or  adminis- 
trators, to  shew  cause  why  the  damages  should  not 
be  assessed,  and  recovered  against  them  \  and  to 
hear  the  judgment  of  the  court  thereupon '.  But 
where  the  death  happens  after  the  writ  of  inquiry 
is  executed,  and  before  final  judgment,  the  scire 
facias  must  be  to  shew  cause,  why  the  damages  as- 
sessed by  the  jury  should  not  be  adjudged  to  the 
plaintiff,  or  his  executors  or  administrators  ^ 

The 

t'Append.Chap.  XLII.  §  76.        i  6  Mod.  144. 

g  1  Wils.  315.  k  1  wils.  243.  and  see  1  T. 

h  Lil.  Ent.  647.  R.  388. 


OF   SCIRE  FACIAS.  1027 

The  judgment  upon  this  statute  is  not  entered 
for  or  against  the  party  himself,  as  upon  the  17 
Cai'.  II.  but  for  or  against  his  executors  or  admi- 
nistrators ^  And  where  the  defendant  dies,  after  in- 
terlocutory and  before  final  judgment,  two  writs  of 
icire  facias  must  be  sued  out  by  the  plaintiff,  be- 
fore he  can  have  execution ;  one  before  the  final 
judgment  is  signed,  in  order  to  make  the  execu- 
tors or  administrators  parties  to  the  record;  the 
other  after  final  judgment  is  signed,  in  order  to 
give  them  an  opportunity  of  pleading  no  assets,  or 
any  other  matter  in  their  defence :  for  it  would  be 
unreasonable  that  the  executors  or  administrators 
should  be  in  a  worse  situation,  where  their  testator 
or  intestate  died  before  the  final  judgment  was 
signed,  than  they  would  have  been  in,  if  he  had 
died  afterwards  *". 

Where  there  were  two  or  more  plaintiffs  or  de- 
fendants in  a  personal  action,  the  death  of  one  or 
more  of  them  pending  the  suit,  would  formerly  in 
some  cases  have  abated  it ".  But  now,  by  the  sta- 
tute 8  &  9  /r.  III.  c.  11.  ^  7.  'Mf  there  be  two  or 
*'  more  plaintiffs  or  defendants,  and  one  or 
*'  more  of  them  die,  if  the  cause  of  action  shall 
•*'  survive  to  the  surviving  plaintiff  or  plaintiffs,  or 
*'  against   the  surviving  defendant  or  defendants, 

«'  the 

»  Salk.  42.  n  Cro.  Jac.  19.  Carter,  19.X 

'«  Say.  Rep.  266.  3  Mod.  249. 


1028  OF    SCIBE   FACIAS. 

"  the  writ  or  action  shall  not  be  thereby  abated  j 
"  but  such  death  being  suggested  upon  the  record, 
"  the  action  shall  proceed,  at  the  suit  of  the  sur- 
"  viving  plaintiff  or  plaintiffs,  against  the  surviving 
"  defendant  or  defendants."  In  such  case,  if  the 
death  happen  before  issue  joined,  it  should  be  sug- 
gested in  making  up  the  issue ;  but  otherwise  it 
need  not  be  suggested,  till  the  plea-roll  is  made 
up°.  And  where  one  of  two  plaintiffs  died  before 
interlocutory  judgment,  and  the  suit  notwithstand- 
ing went  on  to  execution  in  the  name  of  both  ;  on 
a  motion  to  set  aside  the  proceedings  for  this  irre- 
gularity, the  court  permitted  the  surviving  plain- 
tiff to  suggest  the  death  of  the  other  on  the  roll, 
and  to  amend  the  capias  ad  satisfacieiidum^  without 
paying  costs  ''.  But  as  no  new  person  is  introduced, 
there  is  no  occasion  for  a  scire  facias  in  these  cases, 
to  revive  the  judgment. 

Where  there  were  two  or  more  defendants,  and 
one  of  them  died  after  judgment^  arid  before  exe- 
cution, it  was  formerly  holden'',  that  the  plaintiff 
was  put  to  his  scire  facias^  against  the  personal  re- 
presentatives of  the  deceased.  But  it  was  afterwards 
determined,  that  in  such  case  a  scire  facias  would 
lie  against  the  survivor  alone,  reciting  the  death ' ; 

and 

0  1  Bur.  36S.  §  57.  T.  Rayin.  26.  1  Lev.  30, 
V5  T.  R.  577.  1  Keb.  92.  123.   S.  C.  Carth-. 

1  Yelv.  208.  106.  S.  C.  cited. 
I"  Append.   Chap.  XLIh 


OF  SCIRE   FACIAS.  1029' 

and  he  could  not  plead,  that  the  heir  of  the  deceas- 
ed had  asbcts  by  descent,  and  pray  judgment  if  he 
ought  to  be  charged  alone  :  for  at  common  law,  the 
charge  upon  the  judgment,  being  personal,  survi- 
ved ;  and  the  statute  of  TFestm.  2.  which  gives  an 
elegit^  does  not  take  away  the  common-law  reme- 
dy ;  and  therefore  the  plaintiff  may  take  out  his  ex- 
ecution, which  way  he  pleases  :  But  if  he  should, 
after  the  allowance  of  this  writ,  and  revival  of  the 
judgment,  take  out  an  elegit  to  charge  the  land, 
the  party  may  have  remedy  by  suggestion,  or  else 
by  audita  querela  ^  And  it  is  now  settled,  that 
where  there  are  two  or  more  plaintiffs  or  defen- 
dants in  a  personal  action,  and  one  or  more  of  them 
die  after  judgment,  execution  may  be  had  for  or 
against  the  survivors,  without  a  scire  facias  ^ :  But 
the  execution  in  such  case  should  be  taken  out  in 
the  joint  names  of  all  the  plaintiffs  or  defendants"  ; 
otherwise  it  will  not  be  warranted  by  the  judgment. 
Where  there  is  only  one  plaintiff  or  defendant, 
who  dies  after  final  judgment^  and  before  execu- 
tion, a  scire  facias  may  be  had  by  or  against  his 

personal 

p  3  Bac.  Abr.   698.    4  Bac.  Comb.    441.     5   Mod.    338. 

Abr.  419.  Show.  402.  S.  C.  3  Salk.  319. 

t  Moor,  367.  Noy,  150.  Car-  7  Mod.  68.  S.  P. 

ter,    112.    193.    1  Ld.  Raym.  "  1  Ld.  Raym.  244.   1  Salk. 

244.   1  Salk.  319,  Carth.  404.  319.  S.  G. 


1030  OF  SCIRE  FACIAS. 

personal  representatives ;  and  upon  the  death  of  the 
party  against  whom  the  judgment  is  given,  the 
other  party  may  proceed  by  scire  facias  against  his 
heir  and  tertenants. 

The  personal  representatives  are  the  executor  or 
administrator  of  the  deceased ;  or  if  there  be  more 
than  one,  the  executors  or  administrators,  and  the 
survivors  of  them :  And  the  executor  of  an  execu- 
tor is  considered  as  the  representative  of  the  first 
testator.  If  any  of  the  executors  or  administrators 
are  feme  coverts,  their  husbands  must  be  made 
parties  to  the  scire  facias:  And  though  an  execu- 
tor or  administrator  become  bankrupt,  yet  he  may 
still  proceed  by  scire  facias;  as  the  bankruptcy 
does  not  affect  him  in  his  representative  character. 
But  the  administrator  of  an  executor,  claiming  by 
the  act  of  the  ordinary,  does  not  represent  the  ori- 
ginal testator  ^  ;  nor  does  the  executor  or  admi- 
nistrator of  an  administrator  represent  the  first  in- 
testate. Therefore,  when  an  executor  dies  intestate, 
or  after  the  death  of  an  administrator,  it  is  neces- 
sary to  take  out  administration  de  bonis  non,  or  of 
such  goods  as  are  left  unadministered  ^^. 

At  common  law,  an  administrator  de  bonis  non^ 
claiming  by  title  paramount,  could  not  have  had  a 
scire  facias,  or  otherwise  proceeded  on  a  judgment 

recovered 

^'  I  Bos.  8c  Pul.  S 10.  "■  Id.  ibid. 


II 


OF   SCIRE   FACIAS.  1031 

recovered  by  an  executor  or  administrator ;  but  it 
was  otherwise  in  the  case  of  a  judgment  recovered 
against  an  executor  or  administrator  ".  And  now, 
by  the  statute  17  Car.  II.  c.  8.  \  2.  "  Where  any 
"  judgment  after  a  verdict  shall  be  had,  by  or  in  the 
"  name  of  any  executor  or  administrator,  in  such 
"  case  an  administrator  de  bonis  non  may  sue  forth 
*'  a  scire  facias,  and  take  execution  upon  such 
"  judgment."  On  this  statute  it  has  been  holden, 
that  an  administrator  de  bo?iis  non  may  not  only 
commence  an  execution,  on  a  judgment  obtained 
by  an  executor  or  administrator,  but  may  perfect 
an  execution  already  begun  y.  But  still,  if  an  exe- 
cutor bring  a  scire  facias  on  a  judgment  or  recog- 
nisance, and  get  judgment  quod  habeat  executio- 
nem,  and  die  intestate,  the  administrator  c/d-  bonis  non 
must  bring  a  scire  facias  upon  the  original  judg- 
ment, and  cannot  proceed  upon  the  judgment  in 
the  scire  facias  i. 

The  scire  facias  on  a  judgment  by  the  personal 
representatives  states,  in  addition  to  the  judgment, 
the  death  of  the  testator  or  intestate,  as  the  court 
have  been  informed  by  the  person  suing  it  out,  who 
is  described  as  his  executor  or  administrator '' :  If 
the  writ  be  brought  against  personal  representa- 
tives, 

^  1  Rol.  Abr.  890.  W.  Jon.        ^  2  Ld.  Raym.  1049. 
2U.  Cro.  Car.  167.  S.  C.  ^  Append.   Chap.  XLII.  § 

'  1  Salk.  323.  58.  60. 


1032  OF  SCIRE   FACIAS. 

lives,  it  states  that  the  testator  died,  having  made 
the  defendant  his  executor,  or  in  the  case  of  an  ad- 
ministrator, the  death  of  the  intestate,  and  the  grant 
of  administration;  and  is  for  the  defendant  to  shew 
why  the  plaintiff  should  not  have  execution  of  the 
debt  or  damages,  to  be  levied  of  the  goods  and 
chattels  which  were  of  the  testator  or  intestate  at 
the  time  of  his  death,  in  the  defendant's  hands  to  be 
administered,  he  *".  In  a  scire  facias  on  a  judgment 
recovered  by  an  executor,  the  death  of  the  testa- 
tor need  not  be  expressly  averred  ^ 

Upon  the  return  of  nihil  to  a  writ  of  scire  facias 
against  the  personal  representatives  the  plaintiff 
may  have  a  scire  facias  against  the  heir  of  the  de- 
fendant, either  alone  or  jointly  with  the  t er te- 
nants ^  or  tenants  of  the  lands  whereof  the  defendant 
w^as  seised  at  the  time  of  the  judgment,  or  at  any 
time  afterwards'^:  But  where  judgment  is  had 
against  one  who  dies  before  execution,  a  scire  facias 
will  not  lie  against  his  heir  or  tertenants,  until  a 
nihil  be  returned  against  his  executors  or  admi- 
nistrators ^ ;  and  as  the  heir  in  this  case  is  charged 
as  tertenant  ^,  the  plaintiff  can  only  have  execution 
of  a  moiety  of  his  land  ^,  even  where  he  pleads  a 
a  false  plea  ^. 

In 

i*  Append.   Chap.  XLII.  §        e  Carth.107.  2  Wms.Saund.^ 

59.61.  72.  o./z. 

c  1  Str.  631.    2  Ld.  Raym.        f  3  Co.  12.  Cro.  Car.  295. 

1395.  S.C.  312. 

d  2  Wms.  Saund.   7.    (4  )        g  2  Wms.  Saund  7  (4.) 
and  see  id.  8.  (9.)  for  the  de-        ^  Id.  ibid.   Cro.  Car.  296. 

^\n\iiovi  oi  ter-tenants.  Carth.  93. 


OF   SCIRE  f ACIAS.  1033 

In  a  scire  facias  against  the  heir  r.nd  tertenants, 
the  heir  cannot  object  that  the  scire  facias  ought 
first  to  have  issued  against  him'.  But  it  seems  to 
be  the  better  opinion,  that  the  tertenants  alone  are 
not  to  be  chariged  until  the  heir  be  summoned,  or 
it  be  returned  that  there  is  no  heir,  or  that  the 
heir  hath  not  any  lands  to  be  charged'';  for  the 
heir  may  have  a  release  to  plead,  or  other  matter 
in  bar  of  excution:  and  his  land  is  rather  to  be 
charged  than  the  land  of  the  tertenants,  for  the 
heir  shall  not  have  contribution  against  the  terte- 
nants, as  they  shall  against  him;  also  if  the  heir  be 
within  age,  the  parol  shall  demur,  and  the  terte- 
nants shall  have  advantage  of  it '. 

Where  there  are  several  defendants,  and  one  of 
them  dies  before  execution,  since  the  charge  upon 
the  judgment  survives  as  to  the  personalty,  though 
not  as  to  the  realty  ",  the  plaintiff  may  have  a  scii'e 
facias^  framed  upon  the  special  matter,  viz.  against 
the  survivor,  to  shew  why  the  plaintiff  should  not 
have  execution  against  him,  of  his  goods  and 
chattels,  and  of  a  moiety  of  his  lands,  and  against 
the  heir  and  tertenants  of  the  deceased,  to  shew 
why  the  plaintiff  should  not  have  execution  of  a 
moiety  of  the  deceased's  lands,  without  mention- 
ing any  goods ". 

The 

i  Cro.  Eliz.  896.   2  Wms.  Saund.  7.  (4). 

3aund.  72.  /z.  "  Ante,  1028,  9. 

k  2  Wms.  Saund.  8.  (8).  «    Carth.     105.      2     Wms. 

•  Bac.  Abr.  tit.  Scire  facias,  Saund.  72. p. 
C.  5.  Cro.  Car.  295.  2  Wms. 

Vol.  it.  3  B 


1034 


OF  SCIRE   FACIAS. 


The  scire  facias  against  the  tertenants  is  either 
general^  against  all  the  tertenants,  without  naming 
them ;  or  special,  setting  forth  their  names  °.  But 
if  a  plaintiff  undertake  to  name  them,  he  must  name 
them  all ;  and  if  he  do  not,  those  who  are  named 
may  plead  in  abatement  p. 

There  is  also  another  writ  oi  scire  facias^  which 
lies  against  tertenants,  upon  a  writ  of  error  to  re- 
^erse  a  fine  or  recover}  i.  This  writ  is  said  by  lord 
Holt  to  be  discretionary,  and  not  strict!  furls  ;  but 
yet  to  have  been  the  constant  and  usual  course  of 
the  court,  and  therefore  not  to  be  departed  from.  To 
this  writ  the  tertenants  can  only  plead  a  release  of 
errors,  to  defend  their  own  possession,  or  for  the 
sake  of  purchasers ;  but  they  cannot  plead  in  abate- 
ment of  the  writ,  because  they  are  not  parties  to 
the  suif.  And  there  is  no  necessity  in  such  case, 
for  a  scire  facias  against  the  heir^ 


Having  hitherto  treated  of  the  WTits  of  scire 
facias,  on  recognisances  and  judgments,  in  what 

cases 


o  2  Salk.  600.  1  Ld.  Raym. 
669.  S.  C.  and  see  2  Wms. 
Saund.  7.  (4).  Append.  Chap. 
XLII.  §  62,  &c. 

P  Comb.  282.  2  Wms. 
Saund.  7.  (4). 


qCarth.  111.  Skin.  273.  S 
C.   1  Bur.  360. 

"•  Carth.  111.  Skin.  273.  S. 
C.  1  Bur.  359,  60.  and  see  2 
Wms.  Saund.  72.//. 

«  1  Bur.  412. 


OF   SCIRE   FACIAS.  1035 

cases  they  lie,  and  by  and  against  whom  they  may 
be  brought,  with  the  forms  of  them,  distinctly ;  I 
shall  now  consider  them  together,  and  shew  the 
proceedings  thereon  from  the  time  of  their  being 
issued,  till  they  are  finally  determined. 

A  scire  facias  on  a  recognisance  of  bail  in  the 
action,  being  an  original  proceeding,  must  be 
brought  in  Middlesex,  where  the  record  is;  for 
recognisances  in  this  court  are  not  obligatory  by 
the  caption,  as  in  the  Common  Pleas,  but  by 
being  entered  of  record  \  But  in  case  of  a  recog- 
nisance  entered  into  by  bail  on  a  writ  of  error,  it 
is  said,  that  if  it  be  entered  as  taken  at  a  judge's 
chambers  in  Serjeants- Inn,  the  scire  Jacias  maybe 
sued  out  m.  London"^.  A  scire  facias  to  revive  a 
judgment  by  or  against  the  parties,  or  their  per- 
sonal representatives,  not  being  an  original  pro- 
ceeding, but  a  continuation  of  the  former  suit, 
must  be  brought  in  the  county  where  the  venue 
was  laid  in  the  original  action,  the  defendants 
being  supposed  to  reside  in  that  county'':  But 
upon  a  return  of  jiihil  to  the  writ  against  the  per- 
sonal 

12    Salk.    564.    600.    659.  P.  but  see  1  East,  603. 

6  Mod.  42.  132.  7  Mod.  120,  "  8  Mod.  290.  R.  E.  5  Geo. 

21.  R.  E.  5  Geo.  II.  Reg.  3.  II.   Reg.  3.  a.  Lil.  Ent.  620. 

a.  1  Bur.  409.  K.B.  Hob.  195.  v  Hob.   4.  Yelv.  218.   Cro. 

Brownl.  69.  Moor,  883.  S.  C.  Jac.  331.  S.  C.  R.  l\.    5  Ge^. 

Sty.  Rep.  9.  Aleyn,   12.  S.  C.  IT.  Reg.  3.  a. 
2  Lutw.  1287.  Barnes,  97.  C. 


1036  OP   SCIRE  FACIAS. 

sonal  representatives,  the  plaintiff  upon  a  testatum, 
may  have  a  scire  facias  against  the  heir  and  terte- 
nants  in  a  different  county  '''. 

The  scire  facias  upon  a  recognisance  against 
bail  in  the  action,  where  the  proceedings  are  by 
bill,  ought  to  be  tested  on  the  return-day,  or  by 
original,  on  the  quarto  die  post  of  the  return  of 
the  capias  ad  satisfaciendum  against  the  principal ''. 
Upon  a  judgment,  it  may  be  tested  at  any  time 
after  the  judgment,  or  first  day  of  the  term  to 
which  it  relates  :  And  it  may  be  antedated,  even 
in  term-time,  unless  where  it  issues  by  rule  of 
court ''.  By  hill,  the  scire  facias  is  made  returnable 
before  the  king  at  Westminster,  on  a  day  certain  '^ ; 
and  where  there  is  but  one  writ,  there  need  be 
only  four  days  exclusive  between  the  teste  and  re- 
turn of  it '.  But  every  scire  facias  by  original, 
ought  to  have  fifteen  days  inclusive  between  the 
teste  and  return'';  and  should  be  made  returnable 
on  a  general-return  day,  wheresoever,  &c.  ^  A 
scire  facias  in  general  is  not  amendable;  and  there- 
fore 

w  Cro.  Car.  313.  Carth.  105.  Raym.   1417. 

and  see  7  T.  R.  28.  a  4  t.  R.  663.  and  see  R.  E. 

y^  6  Mod.    86.    8  Mod.  227.  5  Geo.  II.  Reg.  3.  a. 

2  Str.  866.  2  Ld.  Raym.  1567.  b  R.  T.  8  W.   III.  a.  E.  5 

S.  C.  R.    E.  5  Geo.  II.  Reg.  Geo.  II.  Reg.  3.  a. 

3.  a.  c  2   Lil.  P.-R.  499.    3  Salk. 

y  2  Salk.  599.  320.    1  Str.  146.  R.  E.  5  Geo. 

^  2  Lil.  P.  R.  499,    Sec.  R.  II.  Reg.  3.  a. 
E.  5  Geo.  li.  Reg.  3.  a.  2  Ld. 


Qf  SCIRE   FACIAS.  1037 

fore  if  it  be  defective  in  the  teste  or  return,  or  vary 
from  the  record,  &:c.  the  plaintiff  must  move  to 
quash  if*. 

The  scire  facias  being  sued  out,  is  delivered  to 
the  sheriff;  and  if  the  bail  or  defendants  live  in  the 
county  into  which  the  writ  issues,  the  plaintiff  may 
cause  them  to  be  summoned  thereon ;  for  which 
purpose  the  sheriff  will  make  out  his  warrant,  a 
copy  of  which  should  be  delivered  to  them,  or  they 
should  have  some  notice  of  the  proceeding-,  the 
sufficiency  of  which,  if  disputed,  must  be  deter- 
mined by  the  courts  The  bail  may  be  summoned 
at  any  time  before  the  rising  of  the  court  on  the 
return-day  ^ :  And  where  the  sheriff  returns  scire 
feci,  the  court  will  not  enter  into  the  validity  of  the 
summons  upon  motion,  but  leave  the  party  to  his 
action  against  the  sheriff,  for  a  false  return  ^. 

On  the  return -day  of  the  scire  facias,  or  quarto 
die  post  of  the  return  by  original,  the  sheriff  may  be 

called 

d  1  Salk.  52.  1  Ld.  Raym.  of  it  by  pleading  nw//zV/ record. 
182.  548.  2  Ld.  Raym.  1057.  Seethe  cases  on  this  subject, 
1  Str.  401.  2  Str.  892.  1165.  collected  in  2  Ld.  Raym.  1057. 
But  there  are  cases  in  the  and  2  Bos.  &  Pul.  275. 
books,  where  a  writ  of  scire  e  2  Blac.  Rep.  837. 
facias  has  been  amended  by  f  1  East,  86.  and  see  1  Str. 
the  court;  not  only  where  it  644.  R.  E.  5  Geo.  IL  reg.  3. 
was  bad  on  the  face  of  it,  by  the  (a),  but  see  2  T.  R.  757.  cow- 
mistake  of  the  clerk,  but  also  tra. 

for  a  variance,  where  the  de-  k  2  Str.  813.    .I  Bur.   1360. 

fendant  had  not  taken  ad  vantage  I  Blue.  Rep.  393.  S.  C^ 


1038  OF  SCIRE   FACIAi. 

called  upon  for  the  return  of  it ;  and  except  on  a 
scire  facias  against  the  heir  and  tertenants,  he 
either  returns  scire  feci ^  or  nihil;  that  he  has  given 
notice  to  the  bail  or  defendants  ^,  or  that  they  have 
nothing  by  which  he  can  make  known  to  them ' ; 
or  that  he  has  given  notice  to  one,  and  the  other 
hath  nothing  ^^  Sec.  On  a  scire  facias  against  the 
heir  and  tertenants,  the  sheriff's  return  is  either 
that  there  are  none  ^,  or  that  he  has  warned  them  to 
appear  :  In  the  latter  case,  if  the  writ  be  general, 
the  sheriff  should  return  that  he  has  warned  certain 
persons,  being  the  tenants  of  all  the  lands  in  his 
bailiwick,  describing  them;  or  the  tenants  of  certain 
lands,  and  that  there  are  no  others  "  ;  a  return  that 
he  has  warned  the  tenants  of  all  the  lands  gene- 
rally ",  or  certain  persons,  tenants  of  lands  in  his 
bailiwick  °,  being  insufficient. 

Where  the  sheriff  returns  nihil^  the  plaintiff  must 
sue  out  a  second  or  alias  writ  oi  scire  facias  p,  com- 
manding the  sheriff,  as  before  he  was  commanded, 
Sec. ;  and  if  upon  this  second  writ,  the  sheriff  also 
return  nihil,  and  the  bail  or  defendants  do  not  ap- 
pear, 

»»  Append.  Chap.  XLII.  §  pend.  Chap.  XLII.  §  71. 

65.  "  Carth.  105. 

i  Id.  §  66.  0  2    Salk.    598.      2    Wms. 

k  Id.  §  67.  Saund.  8.  (7). 

1  Id.  §  70.  p  2  Inst.  272.  Cro.  Jac.  59. 

n^Co.   Ent.    622,   3.     Off.  8  Mod.  227.  Say.  Rep.    121. 

Brev.  278.  282.  286.  Hearne,  Append.  Chap.  XLII.  §  8.  72. 
o26.   Dalt.  Sher.   559.     Ap- 


OF  SCIRE   FACIAS.  1039 

pear,  there  shall  be  judgment  against  them  '^;  two 
nihils  being  deemed  equivalent  to  a  scire  feci.  It 
was  formerly  usual  to  sue  out  both  writs  of  scire 
facias  together,  making  the  teste  of  the  second  as 
if  the  first  had  been  actually  returned '^:  But  now, 
there  is  a  rule  of  court,  that  no  writ  of  alias  scir^ 
facias  shall  issue,  until  the  first  writ  be  returnable '. 
Where  there  are  two  writs  of  scire  facias^  the 
second  should  be  tested  on  the  return-day,  or  by 
original^  on  the  quarto  die  post  of  the  return  of  the 
first,  except  in  error  \  or  the  return-day  happen 
on  a  Sunday  ".  The  alias  should  be  made  return- 
able, like  the  first  writ,  on  a  day- certain'',  or 
general  return- day,  according  to  the  nature  of  the 
proceedings.  And  by  bill^  it  is  sufficient  if  there 
be  fifteen  days  inclusive  between  the  teste  of  the 
first,  and  return  of  the  second  writ,  without  re- 
gard to  the  number  of  days  between  the  teste  and 
return  of  each  "^ :  But  by  original,  there  should  be 
fifteen  days  inclusive  between  the  teste  and  return 

of 

<i  Dyer,  168.  198.  172.201.  "  Dyer,  168.  a. 

Yelv.  1 12.  Sty.  Rep.  281.  288.  ^  o  Lji,  p.  r.  499,  8cc. 

323.  -^  T.  Jon.  228.  2  Salk.  599. 

«■  2  Salk.  599.  8  Mod.  227.  Carth.    468.     7    Mod.   40.   8 

sR.  T.   8  W.  III.  12  Mod.  Mod.  227.    2  Str.  765.  1139. 

87.  7  Mod.  40.  96.  R.  T.    8  W.  III.  a.  R.    E.   5 

t  R.  T.  8  W.  III.  a.  and  Geo.  II.  Reg.  3.  a. 
see  4  T.  R.  377. 


1040  OF  SCIRE   FACIAS. 

of  the  alias,  as  well  as  of  the  first  writ  oi  scire  fa- 
cias"^. Every  writ  of  scire  facias,  of  which  notice 
is  given  to  the  defendants,  must  be  left  in  the 
sheriff's  office,  four  days  exclusive  before  the  re- 
turn y :  And  where  there  are  two  writs,  the  first 
should  be  left  in  the  office  sometime  ^,  (generally 
one  day,)  and  the  alias  four  days  exclusive  (which 
must  be  the  last  four  days  %)  before  the  return  ; 
and  the  sheriff  should  indorse  on  every  such  writ, 
the  day  of  the  month  it  is  left  in  his  office  \  But  so 
as  the  second  writ  o{  scire  facias  be  filed  in  proper 
time  in  the  sheriff's  office,  that  is  sufficient  to  war- 
rant proceedings  against  the  bail,  though  it  be  not 
entered  in  the  scire  facias  book  kept  by  the  sheriff, 
which  is  merely  a  private  book  for  his  own  conve- 
nience. 3  East,  570. 

On  the  return  of  the  second  scire  facias,  or  of 
the  first,  \{  scire  feci  be  returned,  a  rule  must  be 
given  with  the  clerk  of  the  rules,  for  the  bail  or 
defendants  to  appear '^j  which  expires  in  four  days 
exclusive  ;  within  which  time,  they  either  appear 
or  make  default :  In  the  latter  case,  the  plaintiff  is 
entitled  to  judgment  '^,  which  he  may  sign  on  the 
expiration  of  the  rule  :  And  if  a  man  have  judg- 
ment for  damages  against  two,  and  sue  out  a  scire 
facias  against  both,  if  one  be  returned  summoned, 
and  make  default,  and  the  other  have  nothing, 
the  plaintiff"  may  have  execution  against  him  who 

made 

-^  R.  E.  5  Geo.  II.  Reg.  3.  a.  ^  4  T.  R.  583. 

y  Williams  v.  Mason,    M.  4  b  R.  £.  5  Geo.  II.    Reg.  3. 

G.  II.   1  East,  89.  (a).  R.  E.  ^  Id.     a.     Append.     Chap. 

5    Geo.   II.  Reg.   3.  3  Bur.  XLII.  §  73. 

1723.  4  Bar.  2439.  ^^  Com.  Dig.  tit.  Pleader,  S 

"  Id.  ibid.  L.  8,  9. 


OF    SCIRE   FACIAS.  1041 

made  default,  for  the  whole ".  So  if  it  be  re- 
turned that  one  of  them  is  dead,  he  shall  have  ex- 
ecution for  the  whole  against  the  other  ^  Judgment 
being  signed,  the  proceedings  in  scire  facias  should 
be  forthwith  entered  on  a  roll,  and  execution 
awarded :  The  ent7'y  of  the  proceedings  is  either 
against  bail  ^,  or  in  other  cases  ^ ;  And  where  two 
writs  issue,  returnable  in  different  terms,  the  first 
must  be  entered  of  the  term  wherein  it  is  returna- 
able ;  and  an  award  of  the  second  is  sufficient,  with- 
out setting  it  forth  at  large  '. 

If  the  bail  or  defendants  appear  to  the  scire  fa- 
cias^ which  is  signified  by  delivering  a  note  in  wri- 
ting to  the  plaintiff's  attorney '',  a  declaration  must 
be  delivered,  on  treble-penny  stamped  paper,  a 
rule  given  to  plead,  and  a  plea  demanded,  as  in 
other  cases  ^ 

The  declaration  in  scire  facias  begins  by  stating 
that  the  king  sent  to  the  sheriff,  his  writ  close  in 
these  words,  (setting  forth  the  writ  verbatim):  It 
then  states  the  plaintiff's  appearance  at  the  return 
of  the  writ,  and  the  sheriff's  return  thereto ;  and  if 
he  return  wi/zi/,  it  contains  a  recital  of  the  mandatory 

part 

»  Bac.  Abr.  tit.  Execution^  »  R.   E.    5   Geo.  II.  Reg. 

G.  3.  a. 

(Id.  ibid.  k  Append.   Chap.  XUI.  § 

K  Append.  Chap.  XLII.  §  13.  77. 

9,  &c.  »R.   E.     r;  Geo.   II.  Rcj. 

•»/rf.  §74,  &c.  3.  a. 

Vol.  II.  3C 


1042  OF   SCIRE  FACIAS. 

part  of  the  second  writ  of  scire  facias^  and  goes  on 
to  state  the  plaintijQf's  appearance,  in  like  manner, 
at  the  return  of  that  writ,  and  the  sheriif 's  return 
thereto :  Then  follows  the  appearance  of  the  bail  or 
defendants;  and  the  declaration  against  ^ai/  con- 
cludes, by  praying  execution  of  the  debt  or  dama- 
ges recovered  by  bill,  or  of  the  sum  acknowledged 
by  original,  according  to  the  force,  form  and  effect 
of  the  recognisance  *";  or  upon  a  judgment  after  a 
year  and  a  day,  it  concludes  by  praying  execution 
of  the  debt  or  damages  generally  " ;  or  against  exe- 
cutors or  administrators,  of  the  debt  or  damages, 
to  be  levied  of  the  goods  and  chattels  of  the  origi- 
nal defendant,  in  their  hands  to  be  administered  °; 
or  against  the  heir  and  tertenants,  to  be  levied  of 
the  lands  and  tenements,  whereof  they  are  returned 
tenants,  or  which  have  descended  and  come  to  the 
heir,  by  hereditary  descent  from  the  defendant,  ac- 
cording to  the  force,  form  and  effect  of  the  recove- 
ry p.  A  declaration  in  scire  facias,  returnable  the 
last  return  of  a  term,  may  be  entitled  of  the  same 
term  generally  ''.  And  it  is  usual  for  executors  and 
administrators,  in  declaring  on  a  scire  facias,  to 
make  a  profert  in  curia  of  the  letters  testamentary, 
or  of  administration ;  but  it  may  be  inserted  either 
in  the  middle,  or  at  the  end  of  the  writ  *■. 

To 

'"Append.   Chap.  XLII,  §        p/rf.  §82. 
14,  15.  <!  3  VVils.  154. 

•i  Id.  §  78,  &c.  ^  Carth.  69,    1  Show.  60.  8 

°/c/.  §81.  Mod.  134.  7  Mod.  15. 


OF   SCIRE  FACIAS.  1043 

To  a  scire  facias  on  a  recognisance  or  judgment, 
the  defendant  may  plead  in  abatement  or  in  bar,  as 
in  other  actions  ^  On  a  general  writ  of  scire  facias 
against  the  heir  and  tertenants,  if  some  of  the  terte- 
nants  only  are  summoned,  they  may  plead  that 
there  are  other  tertenants  not  named,  in  the  sa7ne 
county,  and  pray  judgment  if  they  ought  to  an- 
swer guousque  the  others  be  summoned,  but  ought 
not  to  pray  quod  breve  cassetur;  for  the  court  ought 
never  to  abate  the  writ,  but  where  the  plaintiff  can 
have  a  better  writ^ :  But  upon  a  special  writ,  if  all 
the  tertenants  are  not  named  in  it,  those  who  are 
may  plead  in  abatement ;  for  there,  the  party  may 
have  a  better  writ,  by  naming  them  all "  :  And  it 
seems  to  be  a  good  plea,  that  there  are  other  ter- 
tenants not  named,  in  another  county  ^.  When  a 
tertenant  is  summoned,  and  doth  not  plead  that 
there  are  other  tertenants,  not  summoned  or  named 
in  the  writ,  he  shall  never  afterwards  have  a  scire 
facias  or  audita  querela^  to  compel  the  others  to 
contribute  "'.  To  a  scire  facias  against  a  tertenant, 
upon  a  judgment  in  debt  or  other  personal  action, 
the  defendant  cannot  plead  non-tenure  generally, 
because  it  is  contrary  to  the  sheriff's  return ;  but 

he 

s  2  Inst.  470.  10  Mod.  112.  v  2  Vent.  104.  Bac.  Abr.tit. 

t2  Salk.  601.  6   Mod.  199,  Scire  facias^    C.    5.   2    Wms. 

226.  2   Ld.  Raym.    1253.    3  Saund.  8.  (10). 

Salk.  321.    S.    C.    2  Wms.  "^  Moor,    524.      2     Wms. 

Saund.  8.  (10).  Saund.  8.  (10). 

u  Id.  ibid. 


1044  OF   SCIRE   FACIAS. 

he  may  plead  a  special  non-tenure  in  such  case,  as 
that  he  has  onl}-  a  term  for  years  '''. 

On  a  scire  facias  against  bail  in  the  action,  they 
may  plead  mil  tiel  record  of  the  recognisance '',  or 
of  the  recovery  against  the  principal;  payment  by, 
or  a  release  to  the  principal  or  bail  ^ ;  or  that  the 
principal  rendered  himself,  or  was  rendered  by 
hi'^  bail,  before  the  return  of  the  capias  ad  satisfa- 
ciendum ^.  They  may  also  plead,  in  discharge  of 
their  liability,  that  there  was  no  capias  ad  satisfa- 
ciendum sued  out  and  returned  against  the  princi- 
pal^: and  if  there  be  a  void  writ,  it  is  as  none  ^ 
But  if  the  writ  be  merely  irregular,  as  if  it  was 
sued  out  after  a  }  ear,  without  a  scire  facias  ^,  or 
made  returnable  on  a  day  out  of  term  '^,  the  bail 
cannot  take  advantage  of  the  irregularity  by  plead- 
ing. If  the  principal  die,  before  the  return  of  the 
capias  ad  satisfaciendum,  this  will  operate  in  excuse 
of  performance,  and  the  bail  may  plead  it  in  their 
discharge ''.  So  they  may  plead  that  a  writ  of  er- 
ror 

^v  2  Salk.  601.  3  Salk.  321.  b  3  Keb.  671.  6  Mod.  304. 

6     Mod.     199.    225.     2     I,d.  =  2  Ld.  Raym.  1096.  6Mod. 

Raym.    1253.   S.  C.  and  see  304.  Holt,  90.  S.  C. 

B  10.  Abr.  tit.  Scire  facias,  E.  ^2  Bur.  1 1 87,  8. 

Con".  Dig.  lit.  Pleader,  3  L.  ^  i  Roj.  Abr.  336   Cro.  Jac. 

11.  165.  W.  Jon.  139.  Sty.  Rep. 

^  T/ies.  Brev.  265.  324.    12  Mod.   601.    10  Mod. 

y  Sty.    Rep.     324.     1     Ld.  267.  R.  E.  5  Geo.  II.  Res?.  3. 

Raym.  157.  Stat.  4  Ann.  c.  a.  But  they  cannot  plead  the 

16.  §  12.  bankrufitcy  and  certificate   of 

2  1  Ld.  Raym.  156,  7.  their  principal.   1  Bos.  8c  Pul 

a  Sty.  Rep.  281.  288.  324.  450.  (b).  2  Bos.  &  Pul.  45 


II 


OF   SCIRE  FACIAS.  1045 

ror  was  sued  out  and  allo^\  ed,  after  the  issuing  and 
before  the  return  of  the  capias  ad  satisfaciendum 
against  the  principal,  so  as  to  avoid  proceedings 
against  them  in  scire  facias  upon  the  recognisance 
of  bail,  prosecuted  after  a  return  by  the  sheriff  of 
non  est  inventus^  made  pending  such  writ  of  error  ^. 
But  it  is  not  a  good  plea,  that  the  principal 
died  before  the  issuing  s^  or  after  the  return  ^  of 
the  capias  ad  satisfaciendum ;  for  though  a  plea 
that  the  principal  died  before  the  writ  issued,  be 
conclusive  if  found  for  the  defendant,  yet  it  is  not 
so,  if  found  for  the  plaintiff;  inasmuch  as  the  prin- 
cipal might  still  have  died  after  the  issuing,  and 
before  the  return  of  the  w^-it :  and  where  the  prin- 
cipal dies  after  the  return  of  the  capias  ad  satisfa- 
ciendum^ this  will  not  discharge  the  bail;  for  upon 
the  return  of  non  est  inventus,  their  recognisance 
is  in  strictness  forfeited;  and  though  a  render  after- 
wards, and  before  the  return  of  the  scire  facias,  is 
allowed,  yet  that  is  merely  ex  gratia,  and  not  ex 
debito  Justiti^,  and  therefore  cannot  be  pleaded  '. 
Where  the  principal  died  after  a  capias  ad  satisfaci- 
endum returned,  and  before  it  was  filed,  the  court 
on  motion  would  have  formerly  stayed  the  filing  of 
it,  in  favour  of  the  bail  ^:   But  in  a  late  case  it  was 

hoi  den, 

f  2  East,  439.  Say.  Rep.  121.2  Wils.  67. 

B  10  Mod.  267.  303.  »  .//«/e,  238,  9. 

t*  12  Mod.  112.236.  8  Mod.         ^  1  Lil.  P.  H.  183.  and  sec 

31.    I  Str.  511.  S.  C.    2  Ld.  R.  E.  5  Geo.  II.  Reg.  3.  a.  2 

Raym.  1452.  2  Str.  717.  S.C.  Cromp.  88.  1  Rich.  Pr.445. 


1046  OF   SCIRE   FACIAS. 

holden,  that  if  the  principal  die  after  the  return  of 
the  capias  ad  satisfaciendum^  and  before  the  return 
is  filed,  the  bail  are  fixed ;  and  the  court  will  not 
stay  the  filing  of  the  return  ^  To  a  plea  of  the 
death  of  the  principal,  before  the  return  of  the 
capias  ad  satisfaciendum^  the  plaintiff  in  his  replica- 
tion must  set  forth  the  writ,  and  that  the  principal 
was  alive  at  the  return  of  it  '^ ;  and  such  replication 
must  conclude  with  an  averment ". 

If  a  scire  facias  be  brought  on  a  judgment,  the 
defendant  may  plead  nul  tiel  record  of  the  recovery", 
payment '',  or  a  release  "^j  or  that  the  debt  or  da- 
mages were  levied  on  a  feri  facias  %  the  defen- 
dant's lands_extended  for  them  upon  an  elegit  %  or 
his  person  taken  in  execution  on  a  capias  ad  satis- 
faciendu?n\  But  it  is  a  rule,  that  the  defendant 
cannot  plead  any  matter  to  the  scire  facias  on  a 
judgment,  which  he  might  have  pleaded  in  the 
original  action  ".  If  the  scire  facias  be  brought 
against  an  executor  or  administrator,  he  may  plead 
ple?ie  administravit ;  but  then,  the  judgment  being 

entitled 

1  6  T.  R.  284.  Ante^  994.  Cro.  Car.  S28.  Clift,  675. 

m  Carth.  4.  ^  Dyer,  299.  b.  1  Lev.  92. 

n  2  Wils.  65.  Doug.  58.  2  t  Off,  Brev.  300.  1  Salk.  271. 

T.  R.  576.  Ante^  957.    but  see    1   Lutw. 

o  Off.  Brev.  279.  Mod.  Int.  641,  3. 

368.  >!  Cro.  Eliz.  283.  588.  1  Sid. 

p  Stat.  4  Ann.  c.  16.  §  12.  182.   1  Salk.  2,    2   Str.   1043. 

q  3  Lev.  272.  Cas.  temfi.  Hardw.  233.  S,  C 

»-4   Leon.    194.   Sav.   123.  Cowp.  727. 


OF   SCIRE  FACIAS.  1047 

entitled  to  a  preference,  he  must  shew  in  what 
manner  he  has  administered "".  And  where,  in  an 
action  against  an  executor,  the  plaintiff  dies  after 
interlocutory  and  before  final  judgment,  the  defen- 
dant cannot  plead  to  the  scire  facias  for  assessing 
damages,  a  judgment  upon  bond  against  his  testa- 
tor, and  no  assets  ultra;  for  the  statute  never  in- 
tended that  the  executor  should  be  in  a  better  situ- 
ation, as  to  the  assessing  of  damages  upon  the  in- 
quiry, than  his  testator,  who  could  have  pleaded 
nothing  but  a  release,  or  other  matter  in  bar,  aris- 
ing puis  darrein  continuance  ^''.  All  pleas  and  de- 
murrers, upon  writs  of  scire  facias^  ought  to  be 
delivered ;  and  all  issues  "  thereon  made  up  by  the 
attorn ies  ^. 

Where  the  party  has  a  release,  or  other  matter 
which  he  might  have  pleaded  to  the  scire  facias  in 
his  discharge,  and  for  want  of  pleading  it,  execu- 
tion is  awarded  upon  a  scire  feci  returned,  he  is 
estopped  for  ever,  and  cannot  by  any  means  take 

advantage 

"■'  1  Ld.  Raym.  3,  4.  "  For  the  form  of  the  issue 

^v  1  Salk.  315.  6  Mod.  142,  in  scire  facias  against  bail,  see 

S.  C.   but  yziicre  whether  the  Append.    Chap.  XLII.  §   16. 

interlocutory  judgment  in  this  and  for  the  entry  of  issue,  and 

case  was  not  obtained  against  award  of  execution,  8cc.  after 

the  testator,  and  he  dying,  the  verdict,  see  id.  §  17. 
scire  facias  issued  against  his         y  R.  T.  12  W.  III.  ?l.  Jnfe. 

executor  f  666. 


1048  OF   SCIRE  FACIAS. 

# 

advantage  of  that  matter"^.  But  where  execution 
is  awarded  on  two  jiihils  returned,  he  may  relieve 
himself  by  audita  querela,  though  not  by  writ  of 
error  =* :  And  where  the  case  is  clear,  and  the  ap- 
plication recent,  the  court  will  interpose  in  a  sum- 
mary way,  and  relieve  the  party  upon  motion '', 
without  putting  him  to  an  audita  querela.  But 
they  will  never  do  it,  where  the  fact  is  disputed  •=; 
or  there  has  been  a  long  acquiescence,  and  several 
steps  have  been  taken  subsequent  to  the  award  of 
execution'^. 

No  damages  are  recoverable  in  scire  facias,  for 
delay  of  execution  ^ ;  and  the  parties  were  conse- 
sequently  not  entitled  to  costs,  until  the  statute  8  & 
9  W.  III.  c.  11.  \  3.  by  which  it  is  enacted,  that 
"  in  all  suits  upon  any  writ  or  writs  oi  scire  facias, 
*'  the  plaintiff  obtaining  an  award  of  execution  af- 
*'  ter  plea  pleaded,  or  demurrer  joined  therein, 
*'  shall  recover  his  costs  of  suit ;  and  if  the  plain- 
'*  tiff  shall  become  nonsuit,  or  suffer  a  disconti- 
"  nuance,  or  a  verdict  shall  pass  against  him,  the 
"  defendant  shall  recover  his  costs,  and  have  exe- 
"  cution  for  the  same  hy  capias  ad  satisfaciendum^^ 
'■'•  fieri  facias'^  or  elegit;''"'  with  a  proviso,  that  the 

statute 

z  F.  N.  B.  104.  1  Salk.  93.  <=  2  Str.  1 198. 

264.    1  Wils.  98.  d  Id.  1075. 

^  Sty.  Rep.   281.  288.  323.  e  3  Bur.  1791. 

1  Salk.  262.   4  Mod.  314.  S.  f  Append.  Chap.   XLII,.  § 
C.  1  Str.  197.                                   25,  8cc. 

''2Ld.Raym.  1295. Barnes,  %  Id.%  18,  &c. 
277. 


OF   SCIRE   FACIAS.  1049 

statute  shall  not  extend  |o  executors  or  administra- 
tors ''.  This  statute  does  not  apply  to  a  scire  facias 
to  repeal  a  patent,  prosecuted  in  the  name  of  the 
king  '.  And  it  has  been  adjudged,  that  no  costs  are 
payable  by  the  plaintiff, on  moving  to  quash  his  own 
writ  befofe  plea  ^',  or  after  a  plea  in  abatement '. 

The  execution  in  scire  facias  is  governed  by  the 
award  of  it :  And  though  in  the  case  of  bail,  the 
recognisance  be  to  levy  of  the  lands  and  chattels, 
yet  execution  of  the  body  by  capias  ad  satisfacien- 
dum is  good  '",  even  as  against  bail  in  error  ",  by  the 
course  of  the  court.  And  a  capias  ad  satisfacien- 
dum may  be  taken  out  against  bail,  without  any 
fieri  facias^  or  return  oi  nulla  bona".  If  the  princi- 
pal be  in  execution,  the  plaintiff,  it  is  said,  cannot 
take  the  bail '' :  But  if  execution  be  taken  against 
the  bail,  and  they  pay  part,  yet  the  plaintiff  may  af- 
terwards take  execution  against  the  principal  for  the 
residue,  the  bail  being  previously  set  at  liberty  "J; 
and  this  is  said  to  be  the  constant  practice  of  the 
court.  Also,  if  two  be  bail,  although  one  be  in  ex- 
ecution, 

^  1  Str.  188.  3  East,  202.  25,  &c. 

i  7  T.  R.  367.  "  2  SU'.  822.  Append.Chap. 

k  Cas.  Pr.  C.  P.  74.  109.  Pr.  XLII.  §  28. 

Reg.    78.   378.    Barnes,   431.  o  2  Str.   1139. 

but  see  1  Str.  638.  p  Cro.  Jac.  320. 

1  1  Str.  638.  >i  1  Sid.  107.  and    see   Cro. 

m  1  Rol.    Abr.  897.    1  Lev.  Jac.  549. 
226.  Append.  Chap.  XLil.  § 

Vol.  11.  3  D 


1050  ©F   SCIRE   FACIAS. 

ecution,  yet  the  plaintiff  may  take  the  otlier '".  And 
the  recognisance  being  joint  and  several,  the  exe- 
cution may  be  several,  though  the  scire  facias  was 
joint '. 

r  Cro.  Jac.  320.  S.  C.    Bac.  Abr.  tit.  Execu- 

s  1  Lev.  225.    1  Sid.  339.    ftow,  G. 


CHAP- 


I 


I 


I     1051     ] 

CHAPTER  XLIII. 

0/*Error. 

\  WRIT  of  error  is  an  original  wnty  issuing  out 
of  Chancery,  and  lies  where  a  party  is  ag- 
grieved by  any  error  in  the  foundation,  proceed- 
ing, judgment,  or  execution  of  a  suit,  in  a  court 
of  record  * ;  and  is  in  nature  of  a  commission  to  the 
judges  of  the  same  or  a  superior  court,  by  which 
they  are  authorised  to  examine  the  record,  upon 
which  judgment  was  given,  and  on  such  examina- 
tion to  affirm  or  reverse  the  same,  according  to 
law  ^.  This  writ  is  grantable  ex  clebito  Justitice,  in 
all  cases,  except  in  treason  and  felony  *".  And  it  is 
said,  that  wherever  a  new  jurisdiction  is  erected  by 
act  of  parliament,  and  the  court  or  judge  that  ex- 
ercise this  jurisdiction,  act  as  a  court  or  judge  of  re- 
cord, according  to  the  course  of  the  common  law, 
a  writ  of  error  lies  on  their  j'ldgments ;  but  where 
they  act  in  a  summary  way,  or  in  a  new  course 
different  from  the  common  law,  there  a  writ  of  er- 
ror lies  not,  but  a  certiorari^.  To  amend  errors  in 

a  court 

»  Co.  Lit.  288.  b.  «  2  Salk.  504. 

>>  2  Bac.  Abr.    187.     1  Str.  «»  I  Salk.  144.  263.  and  see 

607.  2  Ld.  Raym.  1403.  S.  C  3  Salk.  148. 
Cas.  tem/i.  Hardw.  346. 


1052  OF   EHROR. 

a  court  not  of  record,  a  writ  oi  false -judgment  is, 
the  proper  remedy  ^. 

The  writ  of  error  is  usually  brought  by  the  par- 
ty  or  parties  against  whom  the  judgment  was 
given;  or  it  may  be  brought  by  a  plaintiif  to  re- 
verse his  own  judgment,  if  erroneous,  in  order  to 
enable  him  to  briiig  another  action  ^.  But  the  de- 
fendant is  not  allowed  to  bring  it,  contrary  to  his 
own  agreement,  or  that  of  his  attorney^:  And 
where  executors,  against  whom  a  scire  facias  had 
been  sued  out,  to  recover  damages  assessed  on  an 
interlocutory  judgment  against  their  testator, 
brought  a  writ  of  error,  after  the  testator's  attorney 
had  agreed  for  him  that  no  writ  of  error  should  be 
brought,  the  court  on  motion  ordered  the  attorney 
to  nonpros  the  writ  of  error;  for  the  scire  facias 
was  merely  a  continuation  of  the  proceedings  in 
the  original  action ;  and  as  the  testator  himself,  if 
he  had  lived,  could  not  have  brought  a  writ  of  er- 
ror, in  consequence  of  the  agreement,  so  neither 
could  his  executors  \ 

If  an  action  be  brought  against  2i  feme-covert^  as 
2i  feme-sole^  and  she  plead  to  issue  as  a  feme-solcy 
and  judgment  be  given  against  her,  upon  which  she 
is  taken  in  execution,  she  and  her  husband  may 

join 

e  Co  Lit.  288.  b.  Finch,  L.         s  2  T.  R.  183. 
484.  3  Blac.  Com.  406.  »»  1  T.  R.  388.  ^;zre,983,  4 

f  3  Bur.  1772. 


OF   ERROR.  1053 

join  in  bringing  a  writ  of  error ;  for  otherwise  the 
husband  might  be  prejudiced  by  losing  the  society 
of  his  wife,  and  her  care  in  his  domestic  concerns, 
and  he  hath  no  other  means  to  help  himself' :  So 
if  an  action  be  brought  against  a  feme-covert  and 
others,  they  may  ail  join  with  the  husband  in 
bringing  a  writ  of  error ''. 

It  is  a  general  rule,  that  no  person  can  bring  a 
writ  of  error  to  reverse  a  judgment,  who  was  not 
party  or  privy  to  the  record,  or  prejudiced  by  the 
judgment,  and  therefore  to  receive  advantage  by 
the  reversal  of  it  ^  Hence  it  has  been  determined, 
that  if  there  be  judgment,  against  the  principal^ 
and  also  against  the  bail^  the  principal  cannot  have 
error  on  the  judgment  against  the  bail'",  nor  the 
bail  on  the  judgment  against  the  principal  ",  nor 
can  they  join  in  a  writ  of  error  ° ;  for  these  ai*e  dis- 
tinct judgments,  and  affect  different  persons. 

On  a  judgment  against  ^e-uera/ parties,  the  writ  of 
error  must  be  brought  in  all  their  names  •",  provided 
they  are  all  living, and  aggrieved  by  the  judgment; 

for 

i  1  Rol.Abr.  748.  Sty.  Rep.  408.  481.  561.    1  Ld.   Raym. 

Q54.  280.  328,  Carth.  447.  S.  C. 

k  1  Rol.  Abr.  748.  o  Pahn.  567.  Cro.  Car.  300. 

•  2  Bac.  Abr.  195.  408.  574,  5. 

">  Id.  199.   1  Rol.  Abr.  748,  p  6  Co.  25.   Cro.  Eliz.  648, 

9.  Cro.  Car.  408.  and  see  Lil.  9.  S.  C.  Yelv.   4.  Cro.  Eliz. 

Em.  378.  and  the  cases  there  892.    S.  C.    Carth.   7,    8.     3 

cited.  Mod.  134.  S.  C.  1  Ld.  Raym. 

"  2  Leon.    101.   Cro.  Car.  71.     151.      5    Mod.     1669. 


1054 


OF  ERROR. 


for  otherwise  this  inconvenience  would  ensue,  that 
every  defendant  might  bring  a  writ  of  error  by  him- 
self, and  by  that  means  delay  the  plaintiff  from  his 
execution  for  a  long  time,  and  from  having  any  be- 
nefit of  his  judgment,  though  it  might  be  affirmed 
once  or  oftener  "^ :  And  if  the  writ  of  error,  in  such 
case,  be  brought  by  one  or  more  of  the  defendants 
only,  it  may  be  quashed  ^  But  where  judgment  is 
given  against  several  parties,  and  one  or  more  of 
them  die,  the  writ  of  error  may  be  brought  by  the 
survivors  *^.  And  in  trespass  against  three,  if  there 
be  judgment  by  default  against  two  of  them,  and 
the  third  plead  to  issue,  and  it  be  found  for  him, 
the  two  only  may  bring  a  writ  of  error ;  for  the  par- 
ty in  whose  favour  the  judgment  was  given,  can- 
not say  that  it  was  to  his  prej  udice  '.  So  if  a  writ 
of  error  l:!e  brought  in  the  names  of  several  par- 
ties, and  any  one  or  more  of  them  refuse  to  appear 
and  assign  errors,  they  must  be  su?n?noned  and 
severed;  after  which  the  Avrit  of  error  may  be  pro- 
ceeded 


Carth.  36".  Comb.  354.  Holt, 
54.  S.  C.  1  Ld.  Raym.  244. 
Carth.  404.  Comb.  441.  1 
Salk.  319.  5  Mod.  338.  S.  C. 
1  Ld.  Raym.  328.  2  Ld. 
Raym.  870.  1  Salk.  313.  S.C. 
6  Mod.  40.  I  Str.  234.  2  Ld. 
Raym.  1403.  1  Str.  606.  8 
Mod.  305.  316.  S.  C.  2  Ld. 
Raym.     1532.      Cas.      temfi. 


Hardw.  135,  6.  1  Wils.  88.  3 
Bur.  1792.  2  T.  R.  737. 

n  Carth.  8.  and  see  3  Bur. 
1789. 

rPalm.  151.  1  Str.  234. 

s  1  Lev.  210.  Hob.  70.  I- 
Str.  683.  2  Str.  892.  1110. 
Cowp.  425.  2  Blac.  Rep. 
1067.  but  see  Sty.  Rep.  190. 
.T  Salk.  \\&.semb.  contra. 


OF   ERROR.  1055 

ceeded  in  by  the  rest  alone  ' :  And  where  a  writ  of 
error  was  brought  in  the  names  of  two  executors, 
and  one  would  not  join  in  assigning  errors,  the 
court  gave  the  other  time  to  assign  them,  till  there 
could  be  summons  and  severance  ". 

On  a  writ  of  error  brought  against  two  execu- 
tors, one  only  appeared,  and  sued  out  a  scire  facias 
quare  execiitionem  non^  upon  which  the  judgment 
was  affirmed  for  both  executors  ;  and  upon  a  se- 
cond writ  of  error,  the  court  held,  that  a  scire  fa- 
cias quare  execiitionem  non  is  only  to  bring  in  the 
plaintiff  in  error  to  assign  his  errors ;  and  as  he 
came  in  upon  it,  and  assigned  his  errors,  he  waived 
any  objection,  and  admitted  the  one  executor  to 
be  sufficient  to  call  upon  him  to  assign  them  ;  and 
the  court  are  not  to  presume  that  the  other  execu- 
tor is  alive :  And  though  a  writ  of  error  by  one 
alone,  upon  a  judgment  against  two,  be  not  good, 
yet  that  is  upon  account  of  the  inconvenience  that 
would  arise,  from  a  perpetual  delay  of  execution, 
if  every  defendant  might  bring  a  writ  of  error  by 
himself;  but  that  reason  docs  not  hold  in  this  case, 
where  the  executors  are  defendants  in  error,  and 
not  plaintiffs ''. 

A  writ 

t  Yelv.   4.    Cro.  Eliz.  892.  Hardw.  135,  6. 

S.  C.  Cro.  Jac.  1 17.  Carth.  7,  "  2  Str.  783. 

8.  3  Mod.  134.  S.  C.    6  Mod.  ^'  3  Buv.  1789. 
40.    1  Str.    234,    Cas.    temp. 


1056  or   £RROK. 

A  writ  of  error  lies  for  some  error  or  defect  in 
substance,  tha.t  is  not  aided,  amendable,  or  cured 
at  common  law,  or  by  some  of  the  statutes  of 
amendments  or  jeofails  ' .  And  it  lies  to  the  same 
court  in  which  the  judgment  was  given,  or  to 
which  the  record  is  removed  by  writ  of  error,  or 
to  a  superior  court.  If  a  judgment  in  the  King's- 
Bench  be  erroneous,  in  matter  of^ac^  only,  and  not 
in  point  of  law,  it  may  be  reversed  in  the  same 
court,  by  writ  of  error  coram  nobis,  or  qme  coram 
nobis  resident "",  so  called  from  its  being  founded 
on  the  record  and  process,  which  are  stated  in  the 
writ  to  remain  in  the  court  of  the  lord  the  king, 
before  the  king  himself-  ;  as  where  the  defendant, 
being  under  age,  appeared  by  attorney,  or  the 
plaintiff  or  defendant  was  a  married  woman,  at  the 
time  of  commencing  the  suit,  or  died  before  ver- 
dict, or  interlocutory  judgment :  for  error  in  fact 
is  not  the  error  of  the  judges,  and  reversing  it  is 
not  reversing  their  own  judgment''.  So  upon  a 
judgment  in  the  King's-Bench,  if  there  be  error  in 
the  process,  or  through  the  default  of  the  clerks,  it 
may  be  reversed  in  the  same  court,  by  writ  of  er- 
ror 

■>*■  ^n(e,  826,  Sec.  ror  is  called  a  writ  of  error  co- 

^  Append.  Chap.    XLIII.  §  ram  vobis,  or  qux  coram  vobis 

2,  3.  resident. 

y    In    the   Common-Pleas,  '^   1    Rol.  Abr.    747.    Cro. 

the  record  and  process  being  Eliz.  105,  6.     1    Sid.   208.    S 

stated  to    remain   before    ti.e  Salk.  145,  6,  7. 

king's  justices,  the  writ  of  er- 


OF  ERROR.  1057 

ror  coram  nobis  ^ :  But  if  an  erroneous  judgment  be 
given  in  the  King's-Bench,  and  the  error  lie  in  the 
judgment  itself,  and  not  in  the  process,  a  writ  of 
error  does  not  lie  in  the  same  court  upon  such 
judgment  ^ 

If  a  writ  of  error  returnable  in  the  King's-Bench 
abate,  after  removal  of  the  record,  by  death  or 
otherwise  *^,  or  be  quashed  for  any  other  fault  than 
variance  '^,  error  coram  nobis  lies  in  the  same  court 
to  which  the  record  is  removed:  But  formerly,  if 
there  had  been  a  variance  between  the  record  and 
the  writ  of  error,  the  record  not  being  removed, 
there  must  have  been  a  new  writ '.  And  error  co- 
ram nobis  lies  not  in  the  King's-Bench,  after  an  af- 
firmance m  that  court*,  or  in  the  Exchequer-cham- 
ber ^.  Neither  does  it  lie,  for  error  in  fact,  in  the 
Exchequer- chamber  \  or  House  of  Lords;  for  the 
record  is  not  removed  thither,  but  only  a  tran- 
script :  and  it  is  said  to  be  beneath  the  dignity  of 
the  House  of  Lords,  that  being  the  supreme  judi- 
cature, to  examine  matters  of  fact  \ 

For 

a  1  Rol.  Abr.  746.  F.  N.  B.  8  Mod.  305.  316.  S.  C. 

21,Poph.  181.  e  Godb.    375.   but   see  the 

b  1  Rol.  Abr.  746.  stat.  5  Geo.  I.  c.  13. 

c/rf.    753.    Yelv.    6.   Cro.  f  2  Str.   949.   975.    I   Salk. 

Eliz.  891.   S.  C.   Godb.   375.  357 .  Semb.  contra. 

Latch,  198.    S.  C.  Cro.  Car.  s  I  Str.  6yO, 

575.  h  I    Uoi.  Abr.  755.  Com. 

d  1  Ld.  Raym.   151.  Carth.  Rep.  597. 

367.   5    Mod.  16.  69.   S.  C.  1  •  3  Salk.  145,  6. 
Str.  606.  2  Ld.  Raym.  1403. 
Vol.  IL                   3  E 


1058  OF   ERROR. 

For  the  error  or  mistake  of  the  judges,  in  point 
of  law,  a  writ  of  error  lies  to  the  King's-Bench, 
from  the  Common- Pleas  at  JVestminster^y  and  from 
all  inferior  courts  of  record  in  England  \  except  in 
London"",  and  some  other  places;  and  after  judg- 
ment given  thereon,  a  second  writ  of  error  may  be 
brought,  returnable  in  the  House  of  Lords:  but 
error  lies  not  from  an  inferior  court,  to  the  Com- 
mon-Pleas ". 

In  London,  a  writ  of  error  lies  from  the  sheriff's 
courts,  to  the  court  of  hustings  of  common  pleas  ; 
and  from  the  court  of  hustings,  whether  of  com- 
mon pleas  or  pleas  of  land,  and  also  from  the  law 
side  of  the  mayor's  court,  to  a  court  of  appeal  held 
before  commissioners  appointed  under  the  great 
seal,  and  from  thence  immediately  to  the  House  of 
Lords  °.  It  also  seems,  that  the  appeal  against  de- 
crees made  on  the  equity  side  of  the  mayor's  court, 
is  immediately  to  the  House  of  Lords  ^ 

On  a  judgment  given  in  the  Cinque-ports,  no  writ 
of  error  lies  in  the  King's-Bench  or  Common- 
Pleas  ;  but  by  custom,  such  judgment  is  exami- 
nable by  bill,  in  nature  of  a  writ  of  error,  before 

the 

t  4  Inst.  22.  o   Emerson,    on    the    City 

^Append.Chap.XLIII.  §7.  Courts,  27.  76.  97.     2   Bac. 

^"2  Bur.  777.  Abr.  215. 

n  Finch,  L.  480.  Cro.  Eliz.  p   Emerson,    on    the    City 

26.  3  Blac.  Com.  411.  Courts,  86. 


OF  ERROR.  1059 

the  lord-keeper  or  warden  of  the  Cinque-ports^  at 
his  court  of  Shepxvay  '^.  So  if  a  judgment  be  given 
in  the  court  of  Stannaries,  in  the  duchy  of  Cornwall, 
for  any  matters  touching  the  stannaries'^,  no  writ  of 
error  lies  upon  this,  in  the  King's-Bench  or  Com- 
mon-Pleas; but  an  appeal  to  the  wai'den  of  the 
Stannaries,  and  from  him  to  the  Prince  of  JFales, 
and  when  there  is  no  prince,  to  the  king  in  coun- 
cil*. 

A  writ  of  error  lies  at  common  law  in  the  King's- 
Bench,  upon  a  judgment  in  a  county  palatine ;  for 
though  these  are  superior  courts,  and  have  jura 
regalia,  yet  their  jurisdiction  is  derived  from  the 
crown  \  And  by  the  34  &  35  Hen.  VIII.  c.  26. 
^  113.  and  1  JV.  &:  M.  c.  27.  errors  in  judgments, 
in  pleas  real  mixed  and  personal, before  the  justices 
in  their  great-sessions  in  Wales,  shall  be  redressed 
by  writ  of  error,  in  the  King's-Bench  in  England. 

At  common  law,  no  writ  of  error  lay  on  a  judg- 
ment from  the  King's-Bench,  except  in  parliament; 
by  which  means  the  subject  was  often  disappointed 
of  his  writ  of  error,  either  by  the  not  sitting  of 
parliament,  or  by  their  being  employed  in  pub- 
lic business,  when  they  did  sit ".  To  remedy  this, 
it  was  enacted,  by  the  statute  27  Eliz.  c.  8.  that 

^'  where 

14  Inst.  224.  t  Jd.  ibid.  4  Inst.  214.  218. 

^  3  Bulst.  183.  223. 

s  1  Rol.  Abr.  745.  «  2  Bac.  Abr.  212. 


1060  OF  ERROR. 

"  where  any  judgment  shall  be  given  in  the  King's- 
"  Bench,  in  any  action  of  debt,  detinue,  cove- 
*'  nant,  account,  action  upon  the  case,  ejectment, 
**  or  trespass,^r^?  commenced  there^  otherthan  such 
"  only  where  the  Queen  shall  be  party,  the  plain- 
"  tiff  or  defendant,  against  whom  such  judgment 
"  shall  be  given,  may  at  his  election  ^  sue  out  of  the 
"  court  of  Chancery,  a  special  writ  of  error,  di- 
"  rected  to  the  chief-justice  of  the  King's-Bench, 
*'  commanding  him  to  cause  the  record,  and  all 
"  things  concerning  the  judgment,  to  be  brought 
"  before  the  justices  of  the  Common-bench,  and 
"  barons  of  the  Exchequer,  into  the  Exchequer- 
"  chamber,  there  to  be  examined  by  the  said 
"justices  and  barons;  which  said  justices,  and 
"  such  barons  as  are  of  the  degree  of  the  coif,  or 
"  six  of  them,  shall  have  full  power  and  authority 
"  to  examine  all  such  errors  as  shall  be  assigned  in 
"  or  upon  any  such  judgment,  and  thereupon  to 
"  reverse  or  affirm  the  same,  as  the  law  shall  re- 
"  quire,  other  than  for  errors  concerning  the  ju- 
"  risdiction  of  the  court  of  King's-Bench,  or  for 
"  want  of  form  in  any  writ,  return,  plaint,  bill, 
"  declaration,  or  other  pleading,  process,  verdict, 
"  or  proceeding  whatsoever;  and  after  the  said 
*'  judgment  shall  be  affirmed  or  reversed,  the  said 
"  record,  and  all  things  concerning  the  same,  shall 

"be 

'  3  Salk.  147. 


OF   ERROR.  1061 

"  be  brought  back  into  the  King's-Bench,  that 
*'  further  proceeding  may  be  had  thereupon,  as 
"  well  for  execution  as  otherwise :  But  such  re- 
"  versal  or  affirmation  shall  not  be  so  final,  but 
*'  that  the  party  grieved  shall  and  may  sue  in  the 
"  high  court  of  Parliament,  for  the  further  and 
"  due  examination  of  the  said  judgment,  as  was 
*'  then  usual  upon  erroneous  judgments  in  the 
**  court  of  King's-Bench." 

This  statute  is  confined  to  the  particular  actions 
enumerated  therein;  and  does  not  extend  to  ac- 
tions of  replevin '%  rescous'',  scandalum  magnatumyy 
ravishment  of  ward  ^,  or  sct7'e  facias  against  bail  % 
&c. :  In  these  actions  therefore,  error  will  not  lie 
in  the  Exchequer-chamber,  but  must  be  brought 
in  parliament.  In  scire  facias  on  a  judgment, 
against  the  party  or  his  executors,  it  seems  that 
error  lies  in  the  Exchequer-chamber,  tam  in  red- 
ditionc  judicii^  quam  in  adjudicatione  execufionis^ ; 
but  not  upon  an  award  of  execution  only*".  Er- 
rors in  fact  J  being  examinable  in  the  King's-Bench, 

cannot 

w  2  Rol.  Rep.  434.  Cro.  Car.  280.  300.  W.  Jon. 

»  Moor,  626.  Cro.Jac.  171.  325.  1  Ld.  Raym.  98.  but  see 

y  Cro.  Car.    142.   W.   Jon.  Cro.  Eliz.  750.  contra. 

194.    Ley,    82.   S.  C.    1   Sid.  •>  Cro.  Car.  286.   464.  Ld. 

143.  1  Vent.  49.  2  Ld.  Raym.  Raym.  98. 

954.  c  2  Str.    1102.  Andr.  287. 

^  2  Rol.  Rep.  134.  S.  C. 

*  Yelv.  157.  Cro.  Jac  171, 


1062  OF   ERROR. 

cannot  legally  be  assigned  in  the  Ex  chequer- cham- 
ber "^ :  yet  if  a  release  of  errors  be  pleaded  in  that 
court,  they  may  try  it,  and  award  a  venire^  under 
the  seal  of  the  court  of  Exchequer  ^ 

We  have  already  seen,  that  a  writ  of  error  does 
not  lie  in  the  Exchequer-chamber,  upon  a  judg- 
ment of  the  King's-Bench,  in  an  action  commenced 
there  by  origmal  writ ;  because  it  is  not  first  com- 
menced in  the  King's-Bench,  but  is  founded  upon 
the  original  writ  issuing  out  of  Chancery  ^.  And 
for  a  similar  reason,  a  writ  of  error  lies  not  in  the 
ExcJiequer-chamber,  upon  a  judgment  affirmed 
on  error  in  the  King's-Bench,  but  must  be  brought 
in  the  House  of  Lords  s.  So  where  a  judgment  of 
the  King's-Bench  was  affirmed  in  the  Exchequer- 
chamber,  upon  which  the  plaintiff"  sued  out  a  scire 
facias  in  the  King's-Bench,  and  had  an  award  of 
execution,  and  afterwards  the  defendant  brought  a 
writ  of  error  in  the  Exchequer-chamber,  tarn  in 
redclitio?ie Judicii,  quam  in  adjudicatione  executiojiisy 
the  court  held  that  this  writ  of  error  did  not  lie, 
and  was  no  supersedeas  of  execution^.  Upon  that 
part  of  the  statute,  which  excepts  actions  where 
the  Queen  shall  be  party,  it  has  been  questioned, 
whether  a  writ  of  error  lies  in  the  Exchequer-cham- 
ber, 

^  2  Lev.  38.   1  Vent.  207.  %2  Bulst.   152.  and  see   1 

3  Mod.  194.  Com.  Rep.  597.  Rol.  Rep.  264. 

c  2  Str.  82 1 .  hi  Salk.  263.  1  Ld.  Raym 

f  Jnte.  94.  97.  5  Mod.  228.  S.  C 


OF   ERROR.  1065 

her,  upon  a  judgment  in  an  action  of  debt  qui  tarn, 
upon  the  statute  of  usury  '. 

From  proceedings  on  the  law  side  of  the  Exche- 
quer in  England^  a  writ  of  error  lies  into  the  court 
of  Exchequer-chamber,  before  the  lord- chancellor, 
lord-treasurer,  and  the  judges  ofthe  court  of  King's- 
Bench  and  Common-Pleas;  and  from  thence  it 
lies  to  the  House  of  Peers  J :  But  against  decrees 
on  the  equity  side  of  the  Exchequer,  the  appeal  is 
to  the  House  of  Peers  in  the  first  instance. 

Before  the  union  with  Scotland.,  a  writ  of  erroi- 
lay  not  in  this  country,  upon  any  judgment  in  Scot- 
land, because  it  was  a  distinct  kingdom,  and  go- 
verned by  distinct  laws  ^ ;  but  it  is  since  given  by 
statute  \  from  the  court  of  Exchequer  in  Scotland^ 
returnable  in  parliament.  A  writ  of  error  formerly 
lay  from  the  King's-Bench  in  Ireland,  to  the  King's- 
Bcnch  in  England,  and  from  thence  to  the  House 
of  Lords;  but  now,  by  the  statute  23  Geo,  HI. 
c.  28.  \  2.  "  no  writ  of  error  or  appeal  shall  be  re- 
"  ceived  or  adjudged,  or  any  other  proceedings 
"  had,  by  or  in  any  of  his  majesty's  courts  in  this 
"  kingdom,  in  any  action  or  suit  at  law  or  in 
"  equity,  instituted  in  any  of  his  majesty's  courts 

"in 

i  Doug.  350.  I.  3. 

J  3    Blac.    Com.   411.  and        ^  Show.  P.  C.  33. 
see   2   Bac.  Abr.  tit.  Ermr^        i  6  Ann.  c.  26.  §  12. 


1064  OP  ERROR- 

"  in  the  kingdom  of  Ireland;  and  all  such  writs, 
"  appeals,  or  proceedings  shall  be,  and  they  are 
"  thereby  declared  null  and  void,  to  all  intents  and 
*'  purposes."  Since  the  union  with  Ireland  how- 
ever, a  writ  of  error  lies  from  the  superior  courts  in 
that  country,  to  the  House  of  Lords. 

No  writ  of  error  can  be  brought  but  on  a  judg- 
ment, or  an  award  in  nature  of  a  judgment ;  for  the 
words  of  the  writ  are,  si  judicium  I'edditum  sit,  Sec." 
And  hence  it  was  formerly  holden,  that  a  writ  of  er- 
ror could  not  be  brought  before  judgment  given; 
and  if  tested  before,  it  was  no  supersedeas'''.  But 
it  seems  to  be  now  agreed,  that  a  writ  of  error, 
bearing  teste  before  judgment,  is  good,  so  as  the 
judgment  be  given  before  the  return  of  it ;  and  this 
is  the  usual  course  for  preventing  execution  °:  Still 
however,  if  the  writ  of  error  be  returnable  before 
judgment,  it  may  be  quashed''. 

After  judgment,  twenty  years  ar&  allowed  for 
bringing  a  writ  of  error :  And  by  the  statute  10  & 
W  W.  III.  c.  14.  "  no  judgment  in  any  real  or 
"  personal  action,  shall  be  reversed  or  avoided, 
"  for  any  error  or  defect  therein,  unless  the  writ 
*'  of  error  be  brought,  and  prosecuted  with  effect, 
*'  within  twenty  years  after  such  judgment  signed, 

"  or 

">Co.Lit.288.b.  308.  S.    C.    1  Str.  632.    1  T. 

"  2  Bac.   Abr.    199.   1   Rol.  R.  279. 
Abr.  749.  Moor,  461.  P  2  Ld.  Raym.  1179.  1531. 

"March,  140.    1  Vent.  96.  2  Str.  834.  891. 
255.     1   Mod.    112.    3   Keb. 


OF   ERROR.  1065 

•'•  or  entered  of  record."  This  statute  has  the  usual 
exceptions,  in  favour  of  m^Sints^Jeme-coverts,  per- 
sons no7i  compos  mentis^  imprisoned,  or  beyond  the 
seas.  And  the  court  on  motion  would  not  quash  a 
writ  of  error,  though  brought  twenty-nine  years  af- 
ter the  judgment;  for  this  would  be  to  deprive  the 
party  of  the  benefit  of  replying  the  exceptions  in 
the  statute ''. 

A  writ  of  error,  like  a  scire  facias^  is  considered 
as  a  new  action ;  and  therefore  upon  bringing  it,  the 
defendant  in  the  original  action  may  change  his  at- 
torney, without  obtaining  a  judge's  order  for  that 
purpose  \  To  obtain  a  writ  of  error,  application 
must  be  made  by  the  attorney  to  the  cursitor  of 
the  county  where  the  venue  was  laid  in  the  origi- 
nal action ;  who  will  make  out  the  writ,  in  ordinary 
cases,  as  a  matter  of  course,  upon  a  precipe  ^  or 
note  of  instructions,  containing  the  names  of  the 
parties,  the  nature  of  the  judgment,  the  court 
wherein  it  was  given,  and  the  time  when  the  writ 
is  intended  to  be  returnable.  In  parliament,  there 
must  be  a  warrant  for  the  writ  of  error  from  the 
crown,  which  is  procured  by  the  cursitor ';  and 
where  it  is  against  the  king,  the  jiat  of  the  attor- 
ney-general must  be  obtained,  upon  a  petition,  set- 
ting forth  the  errors  intended  to  be  assigned,  ac- 
companied 

qSStr.  837.  1.4.8. 

^ZT.  R.337.  t  Imp.  K.  B.  705. 

'  Append.  Chap.  XLIII.  % 

Vol.  II,  3F 


1066  of  ERROR. 

companied  with  a  certificate  from  counsel,  that 
they  are  real  errors.  This  practice  was  anciently 
used%  as  a  mark  of  decency  and  respect;  and 
though  it  appears  to  have  been  laid  aside  in  the  last 
century  ^,  yet  it  has  since  been  revived. 

The  writ  of  error  runs  in  the  king's  name;  and, 
except  in  a  county  palatine,  should  be  directed  to 
the  chief-justice,  or  other  officer  who  has  the  cus- 
tody of  the  record;  as,  in  the  Common-Pleas,  to  our 
right  trusty  and  well-beloved  Richard  Pepper  Lord 
Alvanley^  our  chief-justice  of  the  Bench '" ;  in  the 
King's-Bench,  to  our  right  trusty  and  well-beloved 
Edward  Lord  Ellenboroughy  our  chief-justice  as- 
signed to  hold  pleas  in  our  court  before  us  ";  or,  if 
it  be  a  writ  of  error  coram  ?iobis,  to  our  justices  as- 
signed to  hold  pleas  before  us  ^' :  and  the  writ  of  er- 
ror in  parliament,  is  directed  to  the  chief-justice  of 
the  King's-Bench,  upon  a  judgment  of  that  court  ^. 
In  the  county  palatine  of  Lancaster,  the  writ  of  er- 
ror  is  directed  to  the  Chancellor  or  his  deputy, 
commanding  him  that  he  give  in  charge  to  the  jus- 
tices at  Lancaster,  that  they  send  to  him  in  his 
chancery,  the  record,  &c.  and  the  writ  which  came 
to  them  thereupon,  and  that  he  transmit  the  record^. 

To 

"  Sav.  131.  213. 

^  1  Salk.  264.  y  Lil.  Ent.  220.  231,  2. 

>^  L.   P.  E.  67,  8.    78,  9.  ^  Jd.  254. 

Lil.  Ent.  222.  268.  ^  2  Cromp.  344. 
^L.  P.  E.  167.    Lil.  Ent. 


OF   ERROR.  1067 

To  reverse  a  fine,  levied  in  the  Common-Pleas,  the 
writ  of  error  is  directed  to  the  Chirographer,  for 
the  transcript  of  the  note  of  the  fine,  and  writs  of 
covenant  ^',  or  to  the  custos  brevium,  for  the  tran- 
script of  the  foot  of  the  fine " :  And  in  inferior 
courts,  the  writ  of  error  should  be  directed  to  the 
judges  before  whom  the  judgment  was  given  \ 

In  point  of  Jorm,  the  body  of  the  writ  of  error, 
when  returnable  in  the  King's-Bench,  on  a  judg- 
ment of  the  Comrnon-Pleas,  runs  thus:  "  Because 
in  the  record  and  process,  and  also  in  the  giving  of 
judgment,  in  a  plaint  which  was  in  our  court,  be- 
fore you  and  your  companions,  our  justices  of  the 
bench,  by  our  writ,  between  A.  B.  and  C.  D.  late 
of,  &c-  of  a  plea  of,  &c.  (describing  the  nature  of 
the  action,)  manifest  error  hath  intervened,  to  the 
great  damage  of  the  said  C.  D.  as  from  his  com- 
plaint we  are  informed;  we  being  willing  that  the 
error,  if  any  there  be,  should  in  due  manner  be  cor- 
rected, and  full  and  speedy  justice  done  to  the  par- 
ties aforesaid  in  this  behalf,  do  command  you,  that 
if  judgment  be  thereupon  given,  then  you  do  dis- 
tinctly and  openly  send  to  us,  under  your  seal,  the 
record  and  process  aforesaid,  with  all  things  touch- 
ing/the  same,  and  this  writ,  so  that  we  may  have 
them  on,  &c.  (ageneral  return-day)  wheresoever  we 

shall 

«»  Lil.  Ent.  280.  <»  Godb.  44. 

c  Id.  282. 


1068  OF   ERROR. 

shall  then  be  in  England,  that  the  record  and  pro- 
cess aforesaid  being  inspected,  we  may  cause  to  be 
further  done  thereupon,  for  correcting  that  error, 
what  of  right,  and  according  to  the  law  and  cus- 
tom of  England,  ought  to  be  done  *^."  This  writ 
consists  of  two  parts,  first,  a  certiorari  to  remove 
the  record;  and  secondly,  a  cojnmission  to  examine 
it^:  But  in  a  writ  of  error  coram  nobis,  the  certio- 
rari part  being  unnecessary  is  omitted,  and  the  writ 
contains  only  a  commission  to  examine  errors  ^. 

Where  the  writ  of  error  is  returnable  in  the  Ex- 
chequer-chamber, it  begins  by  reciting  the  statute 
27  Eliz.  c.  8.  and  brings  the  case  within  that  sta- 
tute, by  stating  that  the  error  in  no  wise  concerns 
the  king,  or  the  jurisdiction  of  the  court  of  King's- 
Bench,  or  any  want  of  form  in  any  writ.  Sec.  ^.  In 
the  House  of  Lords,  the  writ  of  error  differs  in 
point  of  form,  accordingly  as  it  is  brought  on  a 
judgment  originally  given  in  the  court  of  King's- 
Bench  \  or  on  a  judgment  affirmed  there  \  or  in 
the  Exchequer-chamber  \  And  where  the  error  is 
supposed  to  be  as  well  in  giving  the  judgment,  as 
in  awarding  execution  thereon,  the  writ  of  error  is 

said 

e  Append.  Chap.  XLIIL  §        ^  Id.^  9. 
5,  &c.  i  Jd.  §  10. 

f  1  Str.  607.  J  /rf.  §  II. 

g  Append.  Chap.  XLIII.  §        ^  Id.\\2. 
2,3. 


OF  ERROR.  106y 

buid  to  be  ta7n  quam,  or  in  the  words  of  the  writ, 
tarn  171  redditione  judicii,  quam  in  adjudicatione  ex- 
ecutionis^. 

The  teste  of  the  writ  of  error  is  the  day  of  suing 
it  out;  and  in  the  King's-Bench,  it  is  returnable 
2ibicunque,  &:c.  on  the  first  or  last  general  return  of 
the  term  "* :  In  the  Exchequer-chamber,  it  is  re- 
turnable before  the  justices  of  the  Common-bench, 
and  barons  of  the  Exchequer,  of  the  degree  of  the 
coif,  in  the  Exchequer- chamber,  on  a  particular 
return-day":  In  the  House  of  Lords,  when  the 
parliament  is  sitting,  the  writ  of  error  is  made  re- 
turnable before  the  king  in  his  present  parliament, 
immediate^  or  without  delay;  because  that  court, 
during  the  session  of  it,  is  supposed  to  sit  continu- 
ally, and  has  no  vacation,  and  it  is  for  the  honour  of 
that  high  tribunal  to  be  immediately  attended, 
that  tney  may  do  the  speedier  justice  °:  After  a 
prorogation,  the  writ  of  error  is  returnable  before 
the  king  in  his  parliament,  at  the  next  session  •';  or 
after  a  dissolution,  at  the  ntyit parliament ^  specify- 
ing the  day  when  it  is  to  be  holden  '^.  And  it  is  ne- 
cessary, in  all  cases,  that  there  should  be  fifteen 
days  between  the  teste  and  return  of  a  writ  of  error. 

The 

'  2    Str.    1055.    Cas.   temfi.         "  Lil.  Ent.  248.  254. 
Hardw.  345.  S.  C.  p  Id.  292. 

'"  L.  P.E.  33.  q  1  Vent.  31.  266.  \  Mod. 

*",  «  Id.  167.  Lil.  Ent.  213.  106. 


1070  OF   ERROR. 

The  writ  of  error  being  made  out,  is  sealed  m 
Chancery,  either  on  a  general  seal-day,  or,  which  is 
somewhat  more  expensive,  at  a  private  seal ;  and  af 
ter  being  obtained  from  the  cursitor,  it  should  be 
taken  to  the  clerk  of  the  errors  of  the  court, in  which 
the  judgment  was  given  "■,  who  will  alloiv  the  same, 
on  being  paid  his  fees,  and  make  out  a  certificate 
or  note  of  the  allowance  ^ ;  a  copy  of  which  should 
be  served  on  the  attorney  for  the  defendant  in  er- 
ror: this  is  usually  done  at  the  time  of  taxing  costs, 
and  at  the  same  time,  the  original  certificate  should 
be  shewn  him.  The  writ  of  error  coram  nobis  is  al- 
lowed by  the  master^in  open  court ' ;  and  the  rule 
of  allowance  "  being  drawn  up  by  the  clerk  of  the 
rules,  a  copy  of  it  is  served  on  the  attorney  for  the 
defendant  in  error. 

A  writ  of  error,  sued  out  before  final  judgment, 
continues  in  force  during  the  whole  term  in  which 
it  is  returnable  ^ :  and  if  final  judgment  be  signed 
at  any  time  during  that  term,  it  is  -a  supersedeas  or 
stay  of  execution,  from  the  time  of  signing  it  '"y 
provided  bail,  when  requisite,  be  put  in  thereon, 
within  four  clear  days  after  final  judgment  is  sign- 
ed. 

""  R.  E.  36  Car.  II.  and  see  in  vacation  by  the  secondary. 

R.  T.  20 Car.  I.  K.  B.  ^  Append.  Chap.  XLIII.  § 

*  Append.  Chap.  XLIII.§  U. 

13.  ^  Barnes,  196,  7,8. 

t  L.   P.  E.   77.  but  see  2  ^^  I  Str.  632.  and  see  2  Bos. 

Cromp.  394.  where  it  is  said,  8c  Pul.  137. 
that  this  writ  mav  be  allowed 


OF  ERROR.  1071 

ed "".  And  the  court  have  gone  so  far,  that  if  a  writ 
of  error  be  sued  out,  and  the  plaintiff  do  not  sign 
final  judgment,  till  a  subsequent  term  after  the  re- 
turn of  the  writ,  in  order  to  avoid  the  effect  of  it, 
and  then  take  out  execution,  the  court  will  set  it 
aside  ^ . 

After  final  judgment,  and  before  execution  exe- 
cuted, a  writ  of  error  is  generally  speaking  a  super- 
sedeas of  execution,  from  the  time  of  its  allow- 
ance ^,  provided  bail  be  put  in  and  perfected  in  due 
time*;  and  the  allowance  is  notice  of  itself*:  Or 
if  the  defendant,  before  the  allowance,  have  notice 
of  the  writ  of  error  being  sued  out,  and  delivered  to 
the  clerk  of  the  errors,  it  is  from  the  time  of  that 
notice  a  supersedeas ".  And  a  writ  of  error  is  so  ab- 
solutely a  supersedeas,  that  after  it  is  allowed,  the 
plaintiff  cannot  take  out  a  capias  ad  satisjaciendum 
against  the  principal,  and  get  it  returned  non  est 
inventus,  in  order  to  proceed  against  the  bail*^;  nor, 

if 

X  2Str.  781.  IT.  R.  279.  4  ^  i  Salk.  321.  1  T.  R.  28o'. 

T.  R.  121.  but  in  order  to  bring  theattor- 

y  IT.  R.  280.  ney  into  contempt,   for  pro- 

2  Vend   31.     1   Salk.    321.  ceeding   after   the  allowance, 

Willes,  271.  Barnes,  205.   S.  he  must  have   had  actual  no- 

C.  1  Bur.  340.   1  gos.  &  Pul.  tice.  Id.  ibid.  I  Bur.  340. 

478.     2  Bos.   &   Pul.  370.    2  M  Salk.  321.    6  Mod.   130. 

East,  439.  2  Ld.  Raym.  1260.  S.  C.  IT. 

a  2  Str.  781.    1  T.  R.  279.  R.  280.  Say.  Rep.  51. 

Ante,  470,  I.   and   see  R.  E.  d  2  Str.  867.  Fitzgib.  175.   1 

36  Car.  II.  K.  B.  M.  28  Car.  Barnard.  K.  B.  334.  S.  C.    2 

II.  C.  P.  Ld.  Raym.  1567.  S.  C 


1072  OF  ERROR. 

if  the  capias  ad  satisfaciendum  be  sued  out  before, 
can  the  plaintiff  call  for  a  return  of  it,  after  the  al- 
lowance of  a  writ  of  error  %  even  though  it  has  pre- 
viously lain  four  days  in  the  office  *^:  But  in  such 
case,  the  capias  ad  satisfaciendum  may  be  returned, 
so  as  to  fix  the  bail,  after  the  writ  of  error  is  deter- 
mined 2.  If  the  defendant  bring  a  writ  of  error,  and 
the  plaintiff,  as  he  may,  bring  an  action  on  the  judg- 
ment, and  recover,  he  cannot  sue  out  execution  on 
the  second  judgment,  till  the  writ  of  error  be  de- 
termined^  But  where  it  is  apparent  to  the  court, 
that  a  writ  of  error  is  brought  against  good  faith ', 
or  for  the  mere  purpose  of  delay  '',  or  it  is  returna- 
ble of  a  term  previous  to  the  signing  of  final  judg- 
ment ',  or  bail  when  requisite  is  not  put  in  and  per- 
fected in  due  time  "",  it  is  not  a  supersedeas. 

An  execution  being  an  entire  thing,  cannot  be 
superseded  after  it  is  once  begun  :  Therefore  if  a 
writ  of  execution  be  executed,  before  a  writ  of 
error  allowed  or  notice,  it  may  be  returned  after- 
wards ;  and  the  utmost  length  of  time  the  law  al- 
lows for  executing  a  writ,  is  the  day  whereon  it 
is  returnable,  and  it  is  not  executable  any  longer 

that 

^2   Str.    1186.    1  Wils.  16.  semb.  contra. 
S.  C.  1  East,  662.  i  2  T.  R.    183. 

fST.  R.  390.  k4  T.  R.  436.  5T.  R.ri^k 

g    1    Wils.    269.     But  see  ./^nre,  471. 
Barnes,  83,  contra.  '  Barnes,  197,  8. 

f^  3  T.  R.  643.  4  Bur.  2454,         '^^  2  T.  R.  44. 
S.  P.  but  see  Barnes,  202,  ?•. 


OF  ERROR.  1073 

that  day  than  the  court  sits :  So  long  as  it  is  execu- 
table, but  not  executed,  the  allowance  of  a  writ  of 
error  is  a  supersedeas,  but  not  afterwards ".  Judg- 
ment in  a  cause  was  signed  on  the  30th  of  April, 
and  the  plaintiff  on  that  day  sued  out  a  writ  ofjieri 
facias;  afterwards  a  writ  of  error  was  allowed,  and 
served  on  the  agent  in  town  on  the  3d  oiMay,  and 
on  the  plaintiff 's  attorney  in  the  country  and  un- 
der-sheriff on  the  5th  oi  May;  the  sheriff  entered 
on  the  same  day,  but  after  notice  of  the  allowance 
of  the  writ  of  error:  No  bail  in  error  was  put  in; 
and  the  court  upon  that  ground  held,  that  the  writ 
of  error  became  an  absolute  nullity,  and  was  no*w- 
persedeas  or  stay  of  execution :  But  they  said,  that 
if  the  writ  of  error  had  been  followed  up  immedi- 
ately, by  the  plaintiff  in  error  regularly  putting  in 
bail,  it  would  have  operated  as  a  supersedeas.  The 
party  therefore  taking  out  execution,  after  the  al- 
lowance of  a  writ  of  error,  and  before  bail  put  in, 
does  it  at  his  peril ;  for  if  the  writ  of  error  be  re- 
gularly followed  up  by  bail,  the  execution  will  be 
set  aside  **. 


I  shall  next  proceed  to  inquire,  in  what  cases  bail 
is  requisite  on  a  writ  of  error,  and  when,  where, 

and 

"1  Salk.  321.    and   see  Barnes,  205,  S.  C. 

1  Vent.  255.  Willes,  271.  °  2  T.  R.  45. 

Vol.  II.  3G 


1074  OF  ERROR. 

and  how  it  should  be  put  in,  excepted  to,  and  jus- 
tified. No  bail  in  error  was  required  at  common 
law;  so  that  the  defendant,  by  bringing  a  writ  of 
error,  might  have  delayed  the  plaintiff  of  his  exe- 
cution, without  giving  any  security,  either  for  the 
prosecution  of  such  writ,  or  for  the  payment  of  the 
debt  or  damages  recovered  by  the  former  judg- 
ment, in  case  it  should  be  affirmed,  or  the  writ  of 
error  should  be  discontinued,  or  the  plaintiff  in  er- 
ror nonsuited  therein.  The  inconvenience  of  this 
was  very  early  felt ;  and  in  order  to  guard  against 
it,  the  court  of  King's-Bench,  so  long  ago  as  in  the 
reign  of  Henry  the  seventh  p,  would  not  allow  a 
writ  of  error  in  parliament,  until  some  error  was 
shewn  to  them  in  the  record,  lest  it  should  be 
brought  on  purpose  to  delay  execution:  And,  with 
a  like  view,  it  was  ordered  by  the  justices  of  the 
Common-Pleas,  in  the  reign  of  Queen  Elizabeth^ 
that  the  clerk  of  the  treasury  for  the  time  being 
should  not  make  a  supersedeas  upon  any  writ  of  er- 
ror, to  reverse  or  affirm  any  judgment  given  in  that 
court,  upon  any  verdict,  demurrer  in  law  or  con- 
fession, until  some  manifest  or  pregnant  error 
therein  should  be  notified  by  the  party  that  sued 
the  writ  of  error,  or  some  of  his  counsel,  unto  the 

justices 

?  1  Hen.  VII.  19.    1  Vent.  266. 


OF  ERROR.  1075 

justices  of  the  bench,  or  to  one  of  them  at  the 

least  \ 

And  still  further  to  avoid  unnecessary  delays  of 

executions,  it  is  enacted  by  the  statute  3  Jac.  I.  c. 

8.  (made  perpetual  by  the  3  Car.  I.  c.  4.  ^  4.) 
that  no  execution  shall  be  stayed  or  delayed, 
upon  or  by  any  writ  of  error,  or  supersedeas 
thereupon  to  be  sued,  for  the  reversing  of  any 
judgment  in  any  action  or  bill  of  debt,  upon  any 
sing le- bond  ^or  debt,  or  upon  any  obligation  with 
condition  for  the  payment  of  money  only^  or  upon 
any  action  or  bill  of  debt  for  rent^  or  upon  any 
contract^  sued  in  any  of  the  courts  of  record  at 
Westminster^  or  in  the  counties  palatine  of  Ches- 
ter^ Lancaster  or  Durham,  or  the  courts  of  great 
sessions  in  Wales;  nor  (by  the  19  Geo.  III.  c. 
70. )  for  the  reversingof  any  judgment  given  in  any 
inferior  court  of  record,  where  the  damages'"  are 
under  ten  pounds;  unless  the  person  or  persons, 
in  whose  name  or  names  such  writ  of  error  shall 
be  brought,  with  two  sufficient  sureties,  such  as 

*'  the 

1  R.  E.  23  Eliz.  and  see  R.  often    prevails,    of   bringing 

M.  6  &  7  Eliz.    If  this    rule  writs  oF  error  for  the  mere 

were    still   acted   under,    and  purpose  of  delay. 

some  such  rule  were  made  in  •■  Qu.  as  to  the  damages  here 

the  King's-Bench,  or  if  the  de-  referred  to  ;  whether  they  ai'c 

fendant  upon  suing  out  a  writ  the  damages  laid  in  the  declara- 

of  error,  were  obliged  to  bring  tion,  or  the  damages  recover- 

the  debt  and  costs  into  court,  ed  ;    and  if  the  latter,  whether 

it  might  have  a  tendency  to  they    are    with    or    withont 

prevent  the  practice,  that  too  oosts  .' 


1076  OF  ERROR. 

*'  the  court  wherein  the  judgment  is  given  shall  al- 
*'  low  of,  shall  first  be  bound  unto  the  party  for 
*'  whom  the  judgment  is  given,  by  recognisance 
"  to  be  acknowledged  in  the  same  court,  in  double 
"  the  sum  adjudged  to  be  recovered  by  the  former 
"  judgment,  to  prosecute  the  said  writ  of  error 
"  with  effect,  and  also  to  satisfy  and  pay,  if  the  said 
*'  judgment  be  affirmed,  or  the  writ  of  error  non- 
"  prossed,  all  and  singular  the  debts  damages  and 
''  costs  adjudged  upon  the  former  judgment,  and 
"  all  costs  and  damages,  to  be  awarded  for  the  de- 
"  laying  of  execution." 

This  statute  is  confined  to  the  particular  actions 
enumerated  therein ;  and  does  not  extend  to  ac- 
tions on  the  case  upon  bills  of  exchange  %  &c.  but 
it  extends,  in  the  actions  specified,  to  all  manner  of 
judgments,  by  default,  upon  demurrer,  or  nul  tiel 
record^  as  well  as  after  verdict.  In  actions  of  debt 
on  bond,  conditioned  for  the  payment  oi  money 
only^  the  statute  has  been  construed  to  extend,  not 
only  to  cases  where  the  sum  was  originally  certain, 
and  payable  absolutely  by  the  condition,  without 
referring  to  any  other  instrument;  but  also  to 
cases,  where  the  sum  was  originally  uncertain,  but 
afterwards  reduced  to  a  certainty ;  as  debt  on  bond 
conditioned  for  the  payment  of  so  much  money  as 

J.  S. 

8  2  Keb.  234. 


OF  ERROR.  1077 

J.  S.  should  declare  to  be  due  on  an  account*^;  or  on  a 
bottomree  bond,  by  which  the  money  was  payable 
upon  a  contingency,  which  has  happened";  or  where 
the  bond  was  conditioned  for  the  payment  of  a  sum 
of  money  mentioned  in  certain  indentures  ''j  &c. 

But  the  statute  does  not  extend  to  actions  of  debt 
on  bond,  conditioned  for  the  performance  of  cove- 
nants "^,  or  of  an  awards  &c.  even  though  one  of 
the  covenants  be  for  the  payment  of  money,  and 
the  action  be  brought  for  the  non-performance  of 
that  covenant  ^.  But  in  an  action  of  debt  on  bond 
conditioned  for  the  performance  of  covenants,  if 
the  defendant  let  judgment  go  by  default,  without 
craving  oyer  of  the  condition,  and  after  bring  a 
writ  of  error,  it  is  said  that  in  the  King's-Bench, 
he  must  put  in  bail  thereon ;  because  it  does  not 
appear  to  the  court  upon  the  record,  that  the  con- 
dition was  for  performance  of  covenants  ^.  In  debt 
on  a  general  bond  of  indemnity,  bail  is  not  requir- 
ed, on  bringing  a  writ  of  error  after  judgment  by 
default :    But  where  a  man  having  entered  into  a 

bond, 

t  1  Lev.   117.    1  Keb.  613.  Barnes,  78.  98. 

S.  C.  ^1  Bulst.  54. 

"  1  Str.  476,  and  see  6Mod.  "Carth.  28.   1  Show.  14.  S. 

38.butsee  1  Show.  14. Comb.  C.  2  Keb.  131.  S.P. 

lOS.  S.  C.  7  T-  R.  450.  y  2   Cromp.  363.  but  see 

V  2  Str.  959.  2  Barnard.  K.  Barnes,  72.  C.P.  semb.  contra. 
B.389.  Kelynge,  181.    S.  C. 


1078  ©F  ERROR. 

bond,  as  surety  for  another,  to  pay  a  sum  of  money 
to  a  third  person,  took  a  counter-bond  for  payment 
of  the  money,  by  way  of  indemnity,  the  court  held 
this  to  be  a  case  within  the  statute,  and  conse- 
quently that  bail  in  error  was  necessary ''. 

The  condition  of  a  bond  was,  to  pay  for  so  much 
beer  as  the  obligee  should  deliver  to  J.  S.  not  ex- 
ceeding 100/.  ;  and  after  judgment  upon  demurrer, 
the  court  held  that  no  bail  was  requisite  ^.  But  in  a 
subsequent  case  ^^  where  a  bond  was  given  by  a 
third  person,  as  collateral  security  for  a  debtor's 
paying  his  creditors  fifteen  shillings  in  the  pound, 
upon  the  liquidated  amount  of  his  debts,  the  court 
held  this  to  be  a  bond  with  condition  for  the  pay- 
ment of  money  only ;  and  that  its  being  payable  by 
instalments  made  no  difference.  In  the  former  case, 
the  court  seem  to  have  considered  the  statute  as 
introductive  of  a  new  law,  in  restraint  of  the  reme- 
dy by  writ  of  error,  and  therefore  that  it  should  be 
construed  strictly,  and  not  extended  by  equity  to 
cases  out  of  the  letter  of  it:  But  in  the  latter  case, 
they  appear  to  have  holden,  that  the  statute  was  of 
a  remedial  nature,  and  ought  to  receive  a  liberal  con- 
struction, for  the  benefit  of  the  party,  whose  exe- 
cution would  otherwise  be  stayed  by  the  writ  of 

error, 

^  Com.    Rep.  321,  2.  10     S.  C. 
Mod.  281.  co7itra.  ^  2  Bur.  746. 

■^2  Str.  1190.    1  Wils.  19, 


OF  ERROR.  1079. 

error,  and  particularly  as  writs  of  error  are  fre- 
quently brought  for  the  mere  purpose  of  delay. 

In  actions  upon  contracts,  the  statute  is  confined 
to  cases,  where  there  was  originally  a  specific  con- 
tract for  a  sum  certain;  and  it  does  not  extend  to 
actions  of  debt  on  a  promissory  note  %  or  on  the 
common  counts  for  work  and  labour,  and  goods 
sold  and  delivered  '^,  &c.  or  upon  an  account-sta- 
ted ^ ;  nor  to  an  action  of  debt  upon  an  award,  when 
fhe  arbitrators  have  directed  several  controversies 
to  be  settled  by  the  payment  of  one  sum  "".  Neither, 
for  a  similar  reason,  is  bail  in  error  required  in  an 
action  of  debt  on  judgment^;  nor,  as  it  should 
seem,  in  an  action  of  debt  upon  a  recognisance  of 
bail  ^.  And  it  seems,  that  if  there  be  one  count  in 
the  declaration,  on  which  judgment  is  entered,  on 
a  cause  of  action  for  which  debt  would  not  lie  at  the 
time  of  the  statute  of  James,  no  bail  in  error  is  re- 
quired ^  But  if  judgment  be  affirmed,  on  a  writ  of 
error,  in  the  King's-Bench  '\  or  Exchequer-cham- 
ber  \  new  bail  must  be  given,  on  bringing  a  writ 
of  error  in  parliament;   for  the  first  recognisance 

does 

c  2  East,  359.  506.  S.  C 

d  1  Bos.  &  Pul.  249.  g  3  Bur.  1566.   Barnes,  194. 

e  Yelv.  227.  2  Bulst.  53.  S.  but  see  2  Blac.  Rep.  1227. 

C.    1  Lev.    117.    1  Show.  15.  ^  2  East,  359. 

S.  C.  cited.  3  Salk.  147.  7  T.  i  1  Salk.  97.    2  I.d.  Raym. 

R.  449.  2  East,  359,  840.  7  Mod.  120.  S.  C. 

f  3  Bur.  1548.  1  Blac.  Rep.  k  1  Str.  527. 


1080  OF  ERROR. 

does  not  include  the  costs  to  be  assessed  in  the 
House  of  Lords,  and  therefore  a  new  recognisance 
must  be  given,  within  the  intent  of  the  statute; 
and  it  is  not  the  business  of  the  court  where  the 
judgment  is  affirmed,  to  examine  whether  bail  was 
put  in  upon  the  first  writ,  for  the  want  of  that  does 
not  hinder  the  prosecution  of  the  writ  of  error, 
but  only  makes  it  no  supersedeas  ^ 

The  before-mentioned  statute  was  extended  to 
other  actions,  by  the  13  Car.  II.  stat.  2.  c.  2.  §  9.  by 
which  it  is  enacted,  "  that  no  execution  shall  be 
*'  stayed,  in  any  of  the  courts  mentioned  in  the  sta- 
"  tute  3  Jac.  I. ,  by  any  writ  or  writs  of  error,  or^w- 
"  persedeas  thereupon,  after  verdict  and  judgment, 
"  in  any  action  of  debt  grounded  upon  the  statute 
"  2  &  3  Edxv.  VI.  c.  3.  for  not  setting  forth  tythes, 
*'  nor  in  any  action  upon  the  case,  upon  any  pro- 
'*  mise  for  payment  of  money,  actions  sur  trover, 
**  actions  of  covenant,  detinue,  and  trespass,  unless 
"  such  recognisance,  and  in  such  manner,  as  by  the 
**  former  act  is  directed,  shall  be  first  acknow- 
*'  ledged  in  the  court  where  the  judgment  is  given." 

And  by  the  16  &  17  Car.  II.  c.  8.  ^  3.  (made 
perpetual  by  the  22  &  23  Car.  II.  c.  4.)  "  no  exe- 
"  cution  shall  be  stayed,  in  any  of  the  lastmen- 
"  tioned  courts,  by  writ  of  error  or  supersedeas 
"  thereupon,  after  verdict  and  judgment,  in  any  ac- 
"  tion  personal  whatsoever,  unless  a  recognisance, 

«  with 

1  1  Salk.  97. 


OF  ERROR.  1081 

'*  with  condition  according  to  the  statute  3  Jac.  I. 
*'  shall  be  first  acknowledged,  in  the  court  where 
*'  such  judgment  shall  be  given.  And  further,  that 
**  in  writs  of  error  to  be  brought  upon  any  judg- 
"  ment  after  verdict,  in  any  writ  of  f/oif /?r,  or  in  any 
"  action  of  ejectione  jirma,  no  execution  shall  be 
"  stayed,  unless  the  plaintiff  or  plaintiffs  in  such 
"  writ  of  error  shall  be  bound  unto  the  plaintiff  in 
"  such  writ  of  dower ^  or  action  of  ejectione  Jirm^^ 
*'  in  such  reasonable  sum  as  the  court  to  which 
"  such  writ  of  error  shall  be  directed  shall  think  fit, 
"  with  condition,  that  if  the  judgment  shall  be  af- 
"  firmed,  or  the  writ  of  error  discontinued,  in  de- 
"  fault  of  the  plaintiff  or  plaintiffs  therein,  or  the 
"  said  plaintiff  or  plaintiffs  be  nonsuited  in  such 
*'  writs  of  error,  that  then  the  said  plaintiff  or  plain- 
"  tiffs  shall  pay  such  costs,  damages,  and  sum  and 
'*  sums  of  money,  as  shall  be  awarded  upon  or  af- 
"  ter  such  judgment  affirmed,  discontinuance,  or 
"*'  nonsuit." 

And  to  the  end  that  the  same  sum  and  sums  and 
damages  may  be  ascertained,  it  is  further  enacted, 
that  "  the  court  wherein  such  execution  ought  to 
"^e  granted,  upon  such  affirmation,  discontinu- 
"  ance  or  nonsuit,  shall  issue  a  writ  to  inquire  as 
"  well  of  the  mesne-profits,  as  of  the  damages  by 
"  any  waste  committed,  after  the  first  judgment  in 
"  doweTj  or  in  ejectione  Jirma;  and  upon  the  return 
^'  thereof,  judgment  shall  be  given  and  execution 

**  awarded, 

Vol.  II.  3H 


1082  OF  ERROR. 

*'  awarded,  for  such  mesne-profits  and  damages, 
"  and  also  for  coats  of  suit '"." 

The  two  last-mentioned  statutes  are  confined  to 
judgments  after  verdict;  and  do  not  extend,  like 
the  former,  to  judgments  by  default,  upon  demur- 
rer or  mil  tiel  record:  Therefore  upon  these  latter 
judgments,  a  writ  of  error  is  a  sup(frsedeas\\\Ci\fd\x\. 
bail,  in  such  actions  as  are  not  enumerated  in  3  Jac. 
I.    But  it  has  been  determined,  that  a  scire  facias 
against  bail  is  a  personal  action,  within  the  16  & 
17  Car.  II.  c.  8  " .  In  this  latter  statute  there  is  a 
proviso^  "  that  it  shall  not  extend  to  any  writ  of  er- 
''  ror,  to  be  brought  by  any  executor  or  admini- 
"  strator;  nor  unto  any  action  popular,  or  other  ac- 
"  tion  brought  upon  any  penal  law  or  statute,  ex- 
"'  cept  actions  of  debt  for  not  setting  forth  tythes; 
"  nor  to  any  indictment,  presentment,  inquisition, 
^'  information,  or  appeal."  It  has  however  been  de- 
termined, that  if  judgment  be  given  against  an  ex- 
ecutor or  administrator  de  bonis  propriisy  he  shall 
put  in  bail,  in  cases  where  it  would  be  required  of 
other  persons  ° :  and  though  an  executor  or  admi- 
nistrator be  not  compellable  to  give  bail  in  error, 
yet  if  he  do,  the  court  may  take  it,  and  the  rep^g'- 
nisance  will  be  binding  p. 

The 

^  §4.  and  see    2  H.  Blac.  2  Keb.  295.  371.  S.C- 

286,  7.  p  2  Str.  745.  2  Ld.  Raym. 

n  2  Blac.  Rep.  1227.  1459.  S.  C. 
5  1  Lev.  245.    1  Sid.  368, 


i 


OF  EfiROR.  1083 

The  statutes  requiring  bail  in  error  do  not  ex- 
tend to  tlie  writ  of  error  coram  nobis  '^ ;  which  is  or 
is  not  a  supersedeas  of  execution,  according  to  cir- 
cumstances. Where  a  writ  of  error  abates  by  the 
act  of  God,  as  by  the  death  of  the  parties  "■,  or 
chief-justice  %  or  by  the  act  of  law,  a  second  writ 
of  error  is  a  supersedeas  of  itself,  without  motion 
or  leave  of  the  court.  And  it  is  said,  that  if  a  writ 
of  error  be  brought  in  the  same  court,  after  abate- 
ment or  discontinuance  of  a  writ  of  error  coram  710- 
6is,  no  bail  is  requisite,  because  none  was  required 
©n  the  former  writ  of  error  \  But  this  must  be  un- 
derstood, where  the  writ  of  error  coram  nobis  is 
brought  after  an  abatement  by  the  act  of  God,  or 
of  the  law;  for  where  a  writ  of  error  is  quashed  in 
the  King's-Bench  for  insufticiency,  a  writ  of  error 
eoram  nobis  is  noX.  a  supersedeas  of  itself".  In  such 
case  however,  the  court  on  motion  will  order,  that 
upon  the  plaintiff  in  error  putting  in  and  justifying 
bail  within  four  days,  further  proceedings  shall  be 
stayed  on  the  judgment  in  the  original  action,  un- 
til the  writ  of  error  be  determined " ;  which  is  also 
the  course,  upon  a  wHt  of  error  coram  nobis  for  er- 
ror in  fact.  And  a  like  order  was  made,  where  a 
second  writ  of  error  was  quashed  for  insufficiency; 

for 

1  2  Cromp.  394.  *2Cromp.  396. 

«•  Latch,  57,  8.    1  Vent.  353.  "  Garth.  368,9.  1  Ld.  Raym. 

s  1  Keb.   658.   686.  but  see  151.  S.  C.  2  Ld.  Raym.  1404. 

Barnes,  201.   Prac.  Reg.  195.  1  Str.  607.   S.   C.   and  see  a 

S.  C.  Str.  949. 


1084  OF   ERROR. 

for  such  second  writ  being  void,  was  as  if  there 
had  been  none  before''.  Where  a  writ  of  error 
abates  by  the  act  or  defaidt  of  the  party,  a  second 
writ  of  error  is  no  supersedeas "'" ;  as  where  the 
plaintiff  in  error  marries  ",  or  the  writ  of  error  is 
nonprossed  ^.  In  these  cases,  the  court  on  motion 
will  give  the  defendant  in  error  leave  to  take  out 
execution,  notwithstanding  a  second  writ  of  error : 
And  it  seems,  that  on  a  writ  of  error  coram  nobis y 
execution  taken  out  without  leave  of  the  court  is 
irregular  ^. 

Where  bail  is  required  upon  a  writ  of  error,  it 
should  be  put  in  within ybwr  days  after  the  delivery 
of  the  writ  to  the  clerk  of  the  errors,  if  it  be  sued 
out  after  final  judgment  ^ ;  or  if  it  be  sued  out  be- 
fore, the  bail  should  be  put  in  within  four  days  af- 
ter final  judgment  is  signed  ^ ;  otherwise  the  party 
succeeding  in  the  original  action  may  take  out  ex- 
ecution, notwithstanding  the  writ  of  error  '^ :  And  in 

the 

"  Carth.  370.  Bench  had  four  days  to  put  in 

^v  Latch,  57,  8.  I  Vent.  353.  bail,  after  the  allowance  of  the 

X  2  Str.  880.  1015.  writ  of  error.    And  see  R.  T. 

y  1  Cromp.  350.  26  8c  27  Geo.  II.  for  the  time 

z  Say.  Rep.  166.  Barnes,  201.  and  manner  of  putting  in  and 

2  Blac.  Rep.  1067.  Ante,  909.  perfecting  bail  in  error,  in  the 

a  R.  E.  36  Car.  II.  K.    B.  Exchequer  of  Pleas. 

R.  T.  &  M.  28  Car.  II.  1  Bos.  ^2^tv.  781.  1  T.  R.  279.  4 

£c  Pul.  478.  C.  P.    By  a  for-  T.  R.  121.  1  Bos.  &  Pul.  478. 

mer  rule  of  E.  16  Car.  II.  the  t  2  T.  R.  44. 

plaintiff  in  error  in  the  King's- 


ii 


OF  ERROR.  1085 

the  Common-Pleas,  there  is  no  occasion  for  a  cer- 
tificate from  the  clerk  of  the  errors,  that  no  bail  is 
put  in  '^.  The  bail  is  put  in  with  the  clerk  of  the  er- 
rors, who  attends  to  take  their  acknowledgment, 
in  the  court  wherein  the  judgment  was  given,  or 
before  a  judge  of  that  court;  and  it  seems  that  they 
cannot  be  put  in  before  a  commissioner  in  the 
country  ^.  The  same  persons  who  were  bail  in  the 
original  action,  may  become  bail  in  error,  if  they 
are  able  to  justify  ^. 

In  personal  actions,  it  is  a  rule,  founded  upon 
the  statute  3  Jac.  L,  that  the  recognisance  should 
be  acknowledged  in  double  the  sum  adjudged  to 
be  recovered  by  the  former  judgment :  But  upon 
error  in  debt  on  bond,  though  the  bail  are  to  be 
bound  in  double  the  penalty  recovered,  yet  by  the 
course  of  the  court  of  King's-Bench,  it  is  sufficient 
if  they  justify  in  double  what  is  really  due  ^.  In 
ejectment,  the  bail  must  justify  in  double  the 
amount  of  the  yearly  rent,  or  value  of  the  mesne- 
profits,  and  costs ''.    And  the  party  bringing  the 

writ 

'^  Barnes,  212.  double  the  sum  secured  by  the 

e  Id.  78.  condition,     it    is     sufficient ; 

f  8  T.  R.  639.  though  a  further  sum  be  due 

g  2  Str.  821.     1  Wils.  213.  for  interest,  and  costs  and  no- 

and  see  R.  E.    33  Geo.  II.  in  minal  damages  have  been  re- 

Scac,  and  2  Bos.  Ec  Pul.  443.  covered. 

C.   P.   where  it  was  holden,        ^  Cas.  tem/i.  Hardw.  374    4. 

that  if  the  bail  arc  bound  in  Bur.  2502.  Barnes,  lO"^. 


1Q86  OJF   ERROR. 

writ  of  error  must  join  in  the  recognisance ',  except 
in  ejectment,  where  it  is  sujfilicient  if  the  recogni- 
sance be  entered  into  by  two  sureties  \ 

The  condition  of  the  recognisance  in  the  Com- 
mon-Pleas, on  a  writ  returnable  in  the  King's. 
Bench,  is,  according  to  the  direction  of  the  statute, 
that  the  plaintiff  shall  prosecute  his  writ  of  error 
with  effect;  and,  if  judgment  be  affirmed,  shall  sa- 
tisfy and  pay  the  debt,  damages  and  costs  recovered, 
together  with  such  costs  and  damages  as  shall  be 
awarded  by  reason  of  the  delay  of  execution,  or 
else  that  they  (the  bail)  shall  do  it  for  him  ^  On  a 
writ  of  error  returnable  in  the  Exchequer-cham- 
ber, the  form  of  the  recognisance  is  somewhat  dif- 
ferent ;  the  bail  engaging  to  pay  the  sum  recover- 
ed by  the  judgment,  and  such  further  costs  of  suit, 
sum  and  sums  of  money,  as  shall  be  awarded  for 
delay  of  execution  '".  And  as  the  engagement  of 
the  bail  is  absolute,  it  has  been  determined,  that 
they  cannot  surrender  the  plaintiff  in  error " :  nor 
are  they  entitled  to  relief,  where  he  becomes  bank- 
rupt 

i  But  see  2  Bos.  &  Pul.  443,        k  Carth.  12 1.  Barnes,  75.  78. 
where  a  recognisance  entered         *  So  on  error  coram  nobis. 

into  by  the  bail  in  error,  with-  Append.  Chap.  XLIII.  §  18. 
out  the  principal,  was  holden         "^  Id.  §  19.  2  T.  R.  59. 
good,  on  a  judgment  in  c/^(5/ in        "  R.   M.    5  W.  &  M.  (b.) 

the  common  pleas.  K.  B. 


OF  ERROR.  1087 

rupt,  whilst  the  writ  of  error  is  pending" :  So  if  the 
bail  become  bankrupt,  pending  the  writ  of  error, 
and  before  affirmance,  they  are  not  discharged  from- 
their  recognisance ;  for  till  then  the  debt  is  contin- 
gent, and  not  proveablc  under  the  commission ''. 

When  bail  is  put  in,  notice  thereof  should  be 
given  without  delay  to  the  defendant  in  error,  or 
his  attorney  '^ ;  and  if  the  defendant  in  error  do  not 
except  to  the  bail  for  insufficiency,  within  twenty 
days  next  after  such  notice,  the  recognisance  shall 
be  allowed  ^  If  the  bail  be  not  approved  of,  the 
defendant  in  error  may,  at  any  time  within  the 
twenty  days,  obtain  a  rule  from  the  clerk  of  the  er- 
rors, for  better  bail  ^ ;  a  copy  of  which  should  be 
served  on  the  attorney  for  the  plaintift"  in  error : 
And  if  the  bail  do  not  justify,  or  other  bail  be  not 
put  in  and  justified,  within  four  days  after  notice 
of  the  rule,  in  ?cnw-timc^  the  party  succeeding  in 
the  original  action  may  take  out  execution  "  :   But 

the 

0  1  T.  R.   624.   and  see  1     §  16. 

Bos.  &  Pul.  440.  where  it  ATas  '  In  the  King's-Bench,  if  a 

holden,  that  the  bail  in  error  rule  for  better  bail  be  served  in 

are  not  discharged,  by  taking  vacatmt,  there  is  no  occasion 

their  principal  in  execution.  to  justify  until  the  next  term, 

p  2  Str.   1043.    Cas.   (eni/i.  though  the  practice  is  other- 

Hardw.  262.  S.  C.      ^  wise   in  the    Common-Pleas. 

1  Append.  Chap.  XLIII.  §  Barnes,   211.  and  see  R.  T. 
15.  26  &  27  Geo.  II.  in  Scac. 

r  R.  M.   5  W.  &  M.  K.  B.      "  R.  M.   5  W.  &  M.  (b).  K. 
s  Append.    Chap.    XLIII.     B.  R.  M.  6  Geo.  2.  §  6.  C.  P 


1088  OP  ERROR. 

the  writ  of  error  still  remains,  and  may  be  proceed- 
ed in;  the  supersedeas  to  the  execution  only  being 
taken  away''.  The  mode  of  adding  and  justifying 
bail  in  error,  is  the  same  as  in  the  original  action"^ : 
And  if  a  person  excepted  to  as  bail  in  error  do  not 
justify,  his  name  may  be  struck  out  of  the  recog- 
nisance ''. 

Bail  in  error,  when  necessary,  being  complete, 
the  next  step  to  be  taken  by  the  plaintiff  in  error, 
except  on  a  writ  of  error  coram  nobisy  is  to  certify 
the  record ;  in  order  to  which  a  transcript  should 
be  made,  and  sent  with  the  writ  of  error  and  return, 
into  the  court  above.  When  no  bail  is  required, 
this  is  the  first  step  that  is  taken,  after  the  service 
of  the  allowance  of  the  writ  of  error.  And  the 
plaintiff  in  error  should  regularly  cause  the  tran- 
script to  be  made,  (for  the  defendant  cannot  tran- 
scribe the  record  ^,)  by  the  time  the  writ  of  error 
is  returnable.  If  the  record  be  not  certified  by 
that  time,  the  defendant  in  error  may  give  the  plain- 
tiff a  rule  to  certify  it  '^ ;  which  is  an  eight-day 
rule,  obtained  from  the  clerk  of  the  errors  in  the 

Common- 

■'  1  Salk.  97.    2  Ld.  Raym,  ^  Sajr.  Rep.  58. 1  Wils.  337. 

440.  7  Mod.  120.S.  C.  S.  C. 

w  For  the  form  of  notice  of  y  1  Wils.  35. 

justification,      see      Append.  zCas.?cm^.Hardw.352.Ap- 

Chap.  XUn.  §  17.  pend.  Chap.  XLIII.  §  20,  21. 


OF  ERROR.  1089 

Common -Pleas,  on  a  writ  of  error  from  that  court 
returnable  in  the  King's-Bench,  or  from  the  clerk 
of  the  errors  in  the  King's-Bench,  on  a  writ  of  error 
returnable  in  the  Exchequer-chamber  or  House 
of  Lords ;  and  when  obtained,  a  copy  of  it  should 
be  forthwith  made,  and  served  on  the  attorney  for 
the  plaintiff  in  error  *. 

In  the  King's-Bench,  on  a  writ  of  error  to  the 
Exchequer-chamber,  if  the  writ  be  returnable  the 
first  return  of  the  term,  this  rule  may  be  had  on 
the  essoign-day  ^.  In  the  House  of  Lords,  tliere  is 
an  order,  that  upon  writs  of  error,  all  persons  shall 
bring  in  their  writs,  within  fourteen  days  after  the 
first  day  of  the  session  in  which  such  writs  shall  be 
returnable,  otherwise  they  shall  not  be  received, 
unless  upon  judgments  given  during  the  session, 
upon  which  the  writs  shall  be  brought  in  within 
fourteen  days  after  judgment  given  *^.  And  till  the 
expiration  of  the  time  limited  for  bringing  in  the 
w^rit  of  error,  the  defendant  in  error  cannot  have 
execution  '^. 

On  a  writ  of  error  brought  on  a  judgment  in  the 
Common- Pleas,  or  any  inferior  court,  in  an  ad- 
verse suit,  the  record  itself  is  supposed  to  be  re- 
moved, that  it  may  remain  as  a  precedent  and  evi- 
dence 

aL.  P.  E.  33.  c  Com.  Rep.  420,  21. 

«>  Id.  ibid.  J  Id.  ibid.  Bunb.  64,  69, 

Vol.  IL  3  I 


1090  OF  ERROR. 

dence  of  the  law  in  similar  cases  ^.  But  in  the  case 
of  a  fine,  the  transcript  only  is  removed  from  the 
Common- Pleas;  for  a  fine  is  but  a  more  solemn 
acknowledgment  or  contract  of  the  parties,  and  is 
therefore  no  memorial  of  the  law,  and  need  only  be 
affirmed  or  vacated:  If  it  be  affirmed,  the  con- 
tract stands  as  it  was  ;  if  vacated,  the  justices  of  the 
King's-Bench  may  send  for  the  fine  itself,  and  re- 
verse it;  or  they  may  send  a  writ  to  the  treasurer 
and  chamberlain,  to  take  it  off"  the  file  ^.  Besides, 
should  the  record  itself  be  removed,  and  the  fine 
affirmed,  it  could  not  be  engrossed,  for  want  of  a 
Chirographer,  in  the  King's-Bench  ^.  This  distinc- 
tion however  is  not  attended  to  in  practice :  for  on 
all  writs  of  error  returnable  in  the  King's-Bench  ^^ 
as  well  as  in  the  Exchequer-chamber',  or  House 
of  Lords '',  it  is  usual  to  send  only  a  transcript  of 
the  record,  and  not  the  record  itself. 

In  an  inferior  court,  on  a  writ  of  error  returnable 
in  the  King's-Bench,  the  plaintiff"  in  error,  upon 
service  of  the  rule  to  certify  the  record,  should  be- 
speak 

e  2  Bac.  Abr.  202.  F.  N.  B.  Harris.   Prac.  C.   P.  434.  2 

20.    1  Hen.  Vn.  20.  2  Salk.  Salk.  565. 

565.  '  2  Str.  837.  * 

f  1  Salk.  337,8.  341.  k  i  Hen.  VII.  19,  20.  Dyer, 

K  2  Bac.  Abr.  203.  375.  Cro.  Jac.  341,  2.  3  Bulst^ 

h  R.  M.  28  Car.  IJ.  C.  P.  163,  4.  S.  C.  T.  Raym.  5. 


OF   ERROR.  1091 

ipeak  the  transcript  of  the  proper  officer  below,  and 
carry  the  same  into  the  office  of  signer  of  the  writs 
of  the  King's-Bench,  (a  part  of  whose  business  is 
to  receive  and  deliver  out  writs  of  error  and  certi- 
orari, &c.)  and  there  file  it,  before  the  second  seal; 
otherwise  the  defendant  in  error  may  apply,  and 
get  a  certificate  from  the  office,  that  the  writ  of 
error  is  not  returned,  and  the  transcript  brought 
in;  and  may  thereupon  apply  to  the  cursitor,  for 
a  writ  de  execiitione  Jiidicii,  directed  to  the  judges 
of  the  court  below,  commanding  them  that  they 
proceed  to  execution  on  the  judgment,  notwith- 
standing the  writ  of  error  K 

In  the  King's-Bench  and  Common-Pleas,  the 
transcript  is  made  by  the  clerk  of  the  errors,  who 
acts  as  clerk  to  the  chief-justice;  and  in  order  to 
enable  him  to  make  it,  the  defendant  in  error 
should  leave  with  him  the  record,  or  copy  of  the 
proceedings;  upon  which  he  sends  for  the  tran 
script-money,  or  a  part  of  it,  to  the  plaintiff  in  er- 
ror; and  if  paid,  he  proceeds  to  make  the  tran- 
script, which  is  examined  with  the  record  by  the 
attorney  for  the  defendant  in  error'".  In  the  King's- 
Bench,  on  a  writ  of  error  to  the  Ex  chequer- cham- 
ber, if  the  writ  be  returnable  on  the  first  return- 
day  of  the  term,  the  clerk  of  the  errors  takes  the 

wholf 

i2Cromp.  345.  3Salk.  146  ^  L.  P.   F..  34,  5. 


109ii  or  ERROR. 

whole  of  that  term  to  make  the  transcript ;  if  on 
the  last  return-day,  he  takes  all  the  vacation  fol- 
lowing ". 

The  transcript  being  made,  examined  and  paid 
for,  is  delivered  over,  with  the  writ  of  error  and 
return",  by  the  clerk  of  the  errors  of  the  Common- 
Picas,  to  the  signer  of  the  writs  in  the  King's- 
Bench;  or  by  the  clerk  of  the  errors  of  the  King's- 
Bench,  to  the  clerk  of  the  errors  in  the  Exchequer- 
chamber,  or  his  deputy  P.  If  a  writ  of  error  be 
brought  in  parliament,  on  a  judgment  in  the 
King's-Bench,  the  chief-justice  goes  in  person,  at- 
tended by  the  clerk  of  the  errors,  to  the  House 
of  Lords,  with  the  record  itself,  and  a  transcript, 
which  is  examined  and  left  there;  and  then  the  re- 
cord is  brought  back  again  into  the  King's-Bench, 
and  if  the  judgment  be  affirmed,  that  court  may 
proceed  on  the  record  to  grant  execution  :  for  if 
the  record  itself  should  be  removed,  and  judgement 
affirmed,  and  the  parliament  dissolved,  tliere  could 

not 

^  L.  P.  E.  35.  the  proceedings,  for  want  of 

o  Append.  Chap.  XLIII.  §  his    signature.    And    though 

22,  3.  In  the  Common-Pleas,  the  writ  of  error  requires  the 

it  is  usual  for  the  chief-justice  record  to  be  sent  sub  sigillo, 

to   sign  the   return ;    1    Sid.  yet  this  is    never  practised,     m 

268.    Barnes,    201.    but   this  2   Str.    1063,   4.    Cas.  temfi,. 

does  not  seem  to  be  absolutely  Hardw.  344.  S.  C. 
necessary:  At  least,  the  court        p  L.  P.  E.  35. 
of  King's-Bench  will  not  stay 


OF   ERROR.  1093 

not  be  any  proceedings  thereupon  to  have  execu- 
tion "J. 

On  a  writ  of  error  from  the  Common- Pleas,  the 
chief-justice  only  certifies  the  body  of  the  record, 
which  is  all  that  remains  in  his  custody;  for  origi- 
nal and  judicial  writs  remain  with  the  custos  bre- 
viiim^  and  other  officers,  and  are  never  certified,  but 
where  error  is  assigned  for  want  of  them  ^  If  the 
record  be  not  certified  in  due  time,  the  defendant 
in  error  may  sign  a  nonpros  ^;  but  no  costs  are  al- 
lowed thereon^:  And  in  the  Common-Pleas,  he 
cannot  take  out  execution,  without  a  certificate  in 
writing  from  the  clerk  of  the  errors,  that  the  plain- 
tiff in  error  has  made  default,  in  transcribing  the 
record  into  the  King's-Bench  ". 

All  the  proceedings  which  have  been  hitherto 
mentioned,  are  in  the  court  below,  where  the  judg- 
ment was  given ;  but  from  henceforth  they  are  in 
the  court  above,  to  which  they  are  removed. 


When  the  transcript  of  the  record  is  returned 
and  filed,  but  not  before',  the  plaintiff  in  error 
may  move  to  amend  the  writ  of  error,  or  the  de- 
fendant in  error  to  quash  it ;  or  it  may  abate,  ox  be 

discontinued. 

a2Bac.Ahr.  203.  t  T.  R.  17.  L.P.  E.  31. 

«•  Cro.  Eliz.  84.  «  R.  T.  &  M.  28  Car.  11.  C. 

•Append.  Chap.  XLIII.  §  P. 

78,  &c.  V  Ld.  Raym.  329. 


1094  OF   ERROR. 

discontinued.  Of  these  things  therefore  I  shall  treat 
in  their  order;  and  afterwards,  of  the  mode  of 
compelling  the  plaintiff  in  error  to  proceed  and 
assign  errors. 

Great  certainty  was  formerly  required,  in  mak- 
ing the  writ  of  error  agree  with  the  record ;  for  as 
the  writ  was  the  sole  authority  by  which  the  judges 
were  empowered  to  act,  they  could  proceed  only 
on  that  record  which  the  writ  or  commission  au- 
thorised them  to  examine ;  nor  could  any  defects 
therein  be  amended,  before  the  5  Geo.  I.  c.  13.  be- 
cause by  the  former  statutes  of  amendment,  the 
judges  were  only  enabled  to  amend  in  affirmance 
of  the  judgment  "'.  But  now,  by  the  above  statute, 
"  all  Avrits  of  error,  wherein  there  shall  be  any 
*'  variance  from  the  original  record,  or  other  de- 
"  feet,  may  and  shall  be  amended,  and  made 
*'  agreeable  to  such  record,  by  the  respective  courts 
"  where  such  writs  of  error  shall  be  made  return- 
"  able,"  &c.  Upon  this  statute,  it  is  become 
the  practice  to  amend  the  writ  of  error,  as  a  matter 
of  course,  without  costs'';  and  it  has  been  amended, 
by  striking  out  the  name  of  one  of  the  plaintiffs  in 
error  ^ :  But  where  a  writ  of  error  was  returnable 
before  the  giving  of  the  judgment  on  which  it  was 

brought, 

w  2  Bac.  Abr.  200.  Carth.  y  1  Str.  683.   2    Str.  892. 

368.  Fitzgib.  201.  1  Barnard.  K.  B 

^2   Str.   863.    902.    2   Ld.  405.  421.  S.  C.  Cowp.  425.  ^ 

Raym.1587.  S.  C.  Blac.  Rep.  1067. 


I 
I 


OF  ERROR.  1095 

brought,  the  court  on  consideration  held  this  to  be 
such  a  fault,  as  was  not  amendable  by  the  statute  ^. 
The  general  ground  of  quashing  a  writ  of  error 
is  some  fault  or  defect  therein,  that  is  not  amenda- 
ble by  the  above  statute  ^;  and  the  application  to 
quash  it  ought  to  be  made,  either  to  the  court  of 
Chancery,  from  whence  it  issues,  or  to  the  court 
wherein  it  is  returnable  ''.  Where  there  are  several 
parties,  who  are  aggrieved  by  a  judgment,  and  the 
writ  of  error  is  brought  by  some  or  one  of  them 
only,  the  court  will  quash  it  ^.  But  where  one  of 
several  parties  to  a  judgment,  who  is  not  aggrieved 
thereby,  joins  in  bringing  a  writ  of  error,  we  have 
just  seen,  it  may  be  amended*^,  by  striking  out  his 
name,  and  stand  good  for  the  other  parties.  And 
it  may  be  quashed  as  to  one  judgment,  upon 
which  it  does  not  lie,  and  stand  good  for  another, 
upon  which  it  is  properly  brought^.  Costs  are 
payable  in  all  cases,  on  quashing  a  writ  of  error, 
even  though  none  were  recoverable  in  the  original 
action  * ;  it  being  declared  by  statute  ^,  "  that  upon 
"  the   quashing  any  writ  of  error,   for   variance 

"  from 

^  2  Str.  807.  2  Ld.  Raym.  89.  404.   7  Mod.  3.   5  Mod. 

1531.  S.  C.  2  Str.  891.  S.  P.  397.    Carth.    447.    Lil.     Ent. 

a  Append.  Chap.  XLIII.  §  225.  290.  S.  C. 

24.  f  1  Str.  262.  8  T.  R.302. 

^  Doug.  350.  s  4  Ann.  c.   16.  §  25.  and 

^  Antcy  1054.  see   2    Str.   83 1.   Cas.    temji. 

d  ./fn/e,  1094.  Hard W.  137. 

«  1  Ld   Ravm.  328.  1  Salk 


1096  OF  ERROR. 

*'  from  the  original  record,  or  other  defect,  the 
"  defendant  in  error  shall  recover  against  the  plain- 
"  tiff  his  costs,  as  he  should  have  had  if  the  judg- 
*'  ment  had  been  affirmed,  and  to  be  recovered  in 
"the  same  manner:"  which  costs  include  those 
of  quashing  the  writ  of  error  \  But  where  the 
defendant  in  error  enters  continuances  on  the  ori- 
ginal judgment,  to  defeat  the  writ  of  error,  the 
plaintiff  is  not  liable  to  costs  on  quashing  it '. 

A  writ  of  error  may  abate  by  the  act  of  God,  the 
act  of  law,  or  the  act  of  the  party.  If  the  plaintiff 
in  error  die,  before  errors  assigned,  the  writ  abates; 
and  the  defendant  in  error  may  thereupon  sue  out 
a  scire  facias  quare  executionem  ?io?i,  to  revive  the 
judgment,  against  the  executors  or  administrators 
of  the  plaintiff  in  error  ^  But  if  the  plaintifl'  in 
error  die,  after  errors  assigned,  it  does  not  abate 
the  writ  h  In  such  case,  the  defendant  having  joined 
in  error,  may  proceed  to  get  the  judgment  affirm- 
ed, if  not  erroneous;  but  must  then  revive  it, 
against  the  executors  or  administrators  of  the  plain- 
tiff in  error''.  And  a  writ  of  error  does  in  no  case 
abate,  by  the  death  of  the  defendant  in  error,  whe- 
ther it  happen  before  or  after  errors  assigned:  If  it 
happen  before,  and  the  plaintiff'  will  not  assign 
errors,  the  executors  or  administrators  of  the  de- 
fendant 

«  2Ld.  Raym.  1403.  1  Str.     Barnes,  270. 
606.  8  Mod.  316.  S.  C.  '^  2  Cromp.401,  2. 

'   I   Str.    139.   2    Str.    834, 


OF  ERROR.  1097 

fendant  in  error  may  have  a  scire  facias  quare  exe- 
ctitionem  7ion,  in  order  to  compel  him ';  or  if  it  hap- 
pen after,  they  must  proceed  as  if  the  defendant  in 
error  were  living,  till  judgment  be  affirmed,  and 
then  revive  by  sch-e  facias^  but  cannot  take  out  ex- 
ecution pending  the  writ  of  error*":  And  in  order 
to  compel  the  executors  or  administrators  to  join  in 
error,  the  plaintiff  may  sue  out  a  scire  facias  ad  an- 
^ienclum  errores ",  either  generally  or  naming 
them  °.  If  there  be  several  plaintiffs  in  error,  the 
death  of  one  of  them  abates  the  writ '' ;  but  if  there 
be  several  defendants  in  error,  and  one  of  them  die, 
it  is  otherwise,  for  they  are  not  named  in  the  writ^i : 
In  the  latter  case,  the  death  being  suggested  on 
the  roll "",  the  writ  of  error  proceeds  against  the 
survivors.  By  the  death  of  the  chief-justice,  before 
he  has  made  or  signed  his  return,  the  writ  of  error 
becomes  ineffectual  ^ ;  and  the  defendant  in  error, 
by  leave  of  the  court,  may  take  out  execution  ^ : 
but  if  the  return  be  signed  in  his  life-time,  it  may 

be 

1  Yelv.  112,  13.    1  Vent.  34.         i'  Yelv.  208,9.   1  Salk.  261. 

1  Salk.  264.    Barnes,  432.  L.     Carth.  236.  S.  C.   iLd.Raym. 
P.  E.  114.  244.    1  Salk.  319.  S.  C. 

m  L.  P.  E.  1 14.  q  Godb.  66.  68.  1  Ld.  Raym. 

"  Yelv.  1 12,  13.   1  Sid.  419.  439.  1  Salk.  264.  S.  C. 

2  Vent.  34.  1  Salk.  264.  1  Ld.  >•  Lil.  Ent.  2!  7. 
Raym.    439.    S.  C.    Id.    71.  ^  i  Keb.  658.  686. 

1295.  S.  P.  t  Barnes,   201.    Prac.  Reg. 

°  2  Bulst.  230,31.  C.  P.  195.  S.  C. 

Vol.  II.  3  K 


1098  OF  ERROH. 

be  made  afterwards  " ;  and  though  it  be  neither 
made  nor  signed,  3^  et  if  the  defendant  in  error  take 
out  execution,  without  leave  of  the  court,  it  is  irre- 
gular "". 

It  was  formerly  holden,  that  a  writ  of  error  in 
the  House  of  Lords  abated  by  the  dissolution  of  par- 
liament '"',  or  even  by  the  prorogation  of  it "  ;  but 
afterwards  the  loi'ds  declared,  that  a  writ  of  error 
should  not  determine  by  the  prorogation  of  parlia- 
ment y  ;  and  at  length  it  was  ordered,  that  upon  a 
dissolution,  all  appeals  and  writs  of  error  should 
continue,  and  be  proceeded  on  in  statu  quo^  as  they 
stood  at  the  dissolution  of  the  last  parliament  '^.  If 
a  writ  of  error  be  brought  in  the  Exchequer-cham- 
ber, and  that  being  discontinued,  another  be 
brought  in  parliament,  this  second  writ  is  a  super- 
sedeas of  execution ;  but  if  a  writ  of  error  be  brought 
in  parliament,  and  abate,  and  the  plaintiff  bring  a 
second,  this  is  no  supersedeas.,  because  it  is  in  the 
same  court  ^ 

Bankruptcy  is  no  abatement  of  a  writ  of  ^rror : 
therefore,  where  the  defendant  in  error  becomes 

bankrupt, 

1  1  Sid.  268.  y  1  Lev.  165.    2  Lev.  93.    1 

^Barnes,  201.    Prac.  Reg.  Mod.  106.  S.  C.   1  Vent.  266. 

C.  P.  195.  S.  C.  S.  p. 

^^  Cro.  Jac.   342.     2  Bulst.  ^  T.  Raym.  383.  Com.  Dig. 

163.  S.  C.   T.  Raym.  5.  tit.  Parliament^  P.  2.  but  see  1 

X  1  Vent.  31.1  Sid.  413.  S.  Vent.  266.   2  Cromp.  391. 

C.    1  Vent.  266.  a  1  Vent.  100.  1  Mod.  285. 


OF  ERROR.  1099 

bankrupt,  his  assignees  cannot  sue  out  a  scire  fa- 
cias in  their  own  names,  to  compel  an  assignment 
of  errors,  but  should  proceed  in  the  bankrupt's 
name  till  judgment  ^  But  the  writ  of  error  abates, 
by  the  marriage  oi -d.  feme  plaintiff  in  errors  And 
where  to  a  scire  facias  qiiare  executionetn  noUy  the 
,  plaintiff  in  error  pleaded  in  abatement,  that  the  de- 
fendant in  error  was  married  since  the  judgment, 
and  before  the  issuing  of  the  scire  facias,  the  de- 
fendant moved  to  quash  her  own  writ,  which  was 
granted  without  costs  ^. 

If  the  writ  of  error  be  not  quashed  or  abated,  the 
plaintiff  in  error  may,  after  the  record  is  certified, 
forthwith  proceed  to  assign  his  errors.  And  it  was 
formerly  holden,  that  after  the  record  was  certified, 
the  plaintiff  in  error  must  have  assigned  his  errors, 
and  sued  out  a  scire  facias  ad  audiendum  errores, 
to  bring  in  the  defendant  in  error,  the  same  term, 
or  the  term  next  after  the  record  was  certified, 
otherwise  the  whole  matter  was  discontinued^ :  But 
it  has  been  since  determined,  that  if  the  plaintiff  in 
error  lie  still,  after  a  writ  of  error  brought,  and  do 
not  assign  errors,  this  is  no  discontinuance  of  the 
writ  of  error  ^ ;  though  it  is  otherwise,  if  he  make 
default  after  errors  assigned. 

If 

b  I  T.  R.  463.  e  F.  N.  B.  20. 

c  2  Str.  880.  1015,  f  3  Salk.  145 

"»  1  Str.  638 


1100  OF   ERROR. 

If  the  plaintiff  in  error  will  not  proceed,  after  the 
record  is  certified,  the  defendant,  in  order  to  com- 
pel him,  should  sue  out  a  writ  oi  scire  facias  quare 
execiitionem  non  in  the  King's-Bench,  except  on  a 
writ  of  error  coram  ?wbisj  or  by  the  plaintiff  to  re- 
verse  his  own  judgment ;  and  in  the  Exchequer- 
chamber,  he  should  give  a  rule  for  the  plaintiff  to 
allege  diminution,  or  that  the  record  is  not  duly 
certified  or  transcribed. 

In  the  King's-Bench,  we  may  remember  s,  as  the 
parties  have  no  day  in  court  given  to  either  of 
them,  on  the  removal  of  the  record  by  writ  of  er- 
ror, the  defendant  in  error  hath  no  other  way  of 
compelling  the  plaintiff  to  assign  his  errors,  than  by 
suing  out  a  writ  of  scire  facias  quare  executionem 
nan,  &c.  ^ ;  and  if,  upon  such  writ,  the  plaintiff  in 
error  do  not  assign  errors,  but  suffer  judgment  to 
pass  by  default  upon  scire  feci,  or  two  nihils,  no  er- 
rors afterwards  assigned  shall  prevent  execution  '. 

The  scire  facias  quare  executionem  non  is  a  judi- 
cial writ,  issuing  out  of  the  court  of  King's-Bench, 
where  the  record  is  supposed  to  be ;  and  the  intent 
of  it  is,  to  bring  in  the  plaintiff  in  error  to  assign 
his  errors :  Therefore,  Avhere  a  scire  facias  was 
prayed  by  one  of  several  defendants  in  error,  the 

fault 

g  Ante,  1009,  10.  i  Carth.  40,  4 1 , 

h  Godb.  68.   2  Leon.  107. 


OF  ERROR.  1101 

fault  was  holden  to  be  cured  by  the  plaintiff's 
coming  in  upon  it,  and  assigning  his  errors  ^.  This 
writ  may  issue  immediately  after  the  record  is  cer- 
tified, though  before  the  rule  for  certifying  it  is  ex- 
pired'; and  should  be  directed  to  the  sheriff  of  the 
county  in  which  the  action  was  laid.  In  point  of 
form,  it  pursues  the  judgment  of  the  Common- 
Pleas,  the  record  and  proceedings  whereof  are 
stated  to  have  been  brought,  for  certain  causes  of 
error,  into  the  King's-Bench  '" :  And  it  should  be 
made  returnable  on  a  general  return-day,  or  day 
certain,  according  to  the  nature  of  the  proceedings ; 
if  by  original-writ,  on  a  general  return-day,  ubicun- 
que^,  &c.  but  if  by  bill,  or  attachment  of  privilege, 
on  a  day  certain,  at  JFestminster  °.  If  the  transcript 
be  brought  in  by  the  essoign-day  of  the  term,  the 
scire  facias  may  bear  teste  on  the  last  day  of  the 
preceding  term;  or  if  brought  in  within  the  term, 
on  the  first  day  of  that  term  ^.  And  if  there  be  only 
one  writ,  there  should  be  fifteen  days  between  the 
teste  and  TtXxxTUy  by  original;  or  if  there  be  two 
writs,  between  the  teste  of  the  first,  and  return  of 
the  second ''.    The  alias  in  such  case  cannot  issue, 

before 

k  3  Bur.  1791,  2.  o  1  Str.   694.   2  Ld.  Raym. 

12  T.  R.  17.  1417.  S.  C. 

■n  Append.  Chap.  XLII.  §        p  2  Cromp.   345,  6,    Imp. 

41,2.  K.B.  683.   L.  P.  E.  38. 

>»  2  Leon.    107.   and  see  6         12  Cromp.  346. 
Mod.  86.  3  Salk.  320, 


1102  OF  ERROR. 

before  the  return  of  the  former  writ ;  and  ought  to 
be  tested,  by  original^  on  the  quarto  die  post  of  the 
return  of  that  writ,  or  by  bill,  on  the  very  return- 
day  "".  A  scire  facias  in  error  need  not  lie  four  days 
in  the  office,  as  a  scire  facias  against  bail  must% 

On  the  return-day  of  the  scire  facias,  if  scire  feci 
be  returned,  or  of  the  alias  writ,  if  there  be  two  ni- 
hils,  the  defendant  in  error  must  give  a  rule  to  ap- 
pear ^  with  the  clerk  of  the  rules,  which  expires  in 
four  days  exclusive  ".  Within  that  time,  the  plain- 
tiff in  error  might  formerly  have  appeared,  and 
pleaded  to  the  scire  facias,  in  this  as  in  other  cases " ; 
and  there  was  an  old  rule,  that  if  the  party  pleaded 
to  the  scire  facias,  and  it  went  against  him,  execu- 
tion might  be  sued  out,  but  that  the  writ  of  error 
should  go  on  notwithstanding '".  Afterwards,  the 
court,  in  consideration  of  the  delay  arising  from 
this  practice,  established  it  as  a  standing  rule  for 
the  future,  that  if  upon  the  return  of  the  scire  fa- 
cias, the  plaintiff  assigned  his  errors,  then  all  far- 
ther proceedings  should  be  stayed  upon  it ;  but 
where  he  chose  to  stand  out  upon  pleadings  to  the 

scire 

«■  2  Salk.  699.    Imp.  K.  B.  «  2  Cromp.  347. 

683.  V  Yelv.  6,  7.    Garth.  40,  41: 

»  3  Bur.  1723.  4  Bur.  2439.  3  Salk.  145.   1  Str.  638. 

t  Append.  Chap.  XLIII.  §  ^v  i  Str.  391. 
25. 


OF  ERROR.  1103 

scire  faciasy  execution  should  go,  if  it  were  adjudg- 
ed against  him  ".  From  this  time,  the  court  appear 
to  have  discountenanced  pleadings  upon  the  scire 
JaciaSy   and  in  some   instances  to  have  set  them 
aside ''.  At  present,  the  scire  facias  is  considered 
merely  as  a  means  of  compelling  an  assignment  of 
errors  ^ ;  and  it  seems  to  be  the  practice  nov/,  to 
admit  of  no  plea  thereto,  by  the  plaintiff  in  error  •^. 
If  errors  are  assigned,  before  the  expiration  of  the 
^  rule  to  appear  to  the  scire  facias^  all  farther  pro- 
'   ceedings  upon  it  are  stayed  of  course ;  but  if  the 
plaintiff  do  not  assign  his  errors,  and  give  a  copy  of 
them  to  the  defendant's  attorney  in  error,  before 
the  time  allowed  by  the  rule  on  the  scire  facias  is 
expired,  the   attorney  for  the  defendant  in  error 
may  enter  judgment  on  the  scire  facias ,  and  take 
out  execution  thereon  :  but  the  writ  of  error  still 
remains  in  force;  and  the  defendant  in  error  can 
have  no  costs,  unless  he  give  a  rule  for  the  plain- 
tiff to  assign  errors  ^. 

Diminution  is  either  of  the  body  of  the  record, 
or  of  its  out-branc\es,  as  of  the  original  writ,  war- 
rant of  attorney,  Sec.  If  the  judges  of  the  Com- 
mon-Pleas, or  other  judges,  upon  a  writ  of  error, 

do 

"  1  Str.  391,  ^  Jnte,  1101. 

y  Id.   679.     2  Ld.  Raym.        »  2  Cromp.  348. 

1414.  S.  C.  and   see  3  Bur.         »>  2  Bac  Abr.  216.   and  scp 
1792.    1  T,  R.  463.  2  Crom.  347 


1104 


OF  ERROR. 


do  not  certify  all  the  record,  the  party  that  sues  the 
writ  of  error  may  allege  diminution  of  the  record, 
and  pray  a  writ  to  the  justices,  who  certified  the 
record  before,  to  certify  the  whole  of  it ".  But  it  is^a 
rule,  that  a  man  cannot  allege  diminution,  contrary 
to  the  record  which  is  certified ;  as  if,  on  a  writ  of 
error,  it  be  certified  that  the  judgment  was,  that 
the  defendant  should  be  in  misericorclid,  the  de- 
fendant in  error  cannot  allege  for  diminution,  that 
the  record  is  quod  capiatur,  because  this  is  contra- 
ry to  the  record  certified  ^,  And,  except  in  Wales 
and  the  couniies-palathie^,  diminution  cannot  be 
alleged,  upon  a  writ  of  error  brought  on  a  judg- 
ment in  any  inferior  court  ^ 

The  7-ule  to  allege  diminution  is  an  eight-daj  rule, 
given  by  the  clerk  of  the  errors  in  the  Exchequer- 
chamber  s ;  and  if  the  writ  of  error  be  returnable  the 

first 


c  2  Bac.  Abr.  204.  F.  N. 
B.  25.  a.  and  see  Cro.  Eliz. 
155.  281.   iNels.  Abr.  658. 

•^  1  Rol.  Abr.  764.  Godb. 
267.  And  in  a  late  case,  where 
a  writ  of  error  was  brought  in 
parliament,  on  a  judgment  of 
the  court  of  Exchequer  in  Ire- 
land, affirmed  in  the  Ex- 
chequer-chamber there,  the 
House  of  Lords  held  that  di- 
minution could  not  be  alleged 
in  the  body  of  the  record,  con- 
trary to  the  traiiscrifit ;  and  re- 


fused to  issue  a  certiorari  for 
verifying  it.  Rowe  v.  Power ^ 
ex  dem.  Boyse  and  another,  in 
Error.  Dom.  Proc.  die  Mart. 
8  Mar.  1803.  but  see  1  Bulst.. 
181.  2  Lil.  Abr.  422.  1  Salk. 
49.  Lil.  Ent.  226.  245.  556. 
559,  565. 

e  1  Sid.  147.  364.  1  Salk. 
266.  in  marg'.  Id. 270.  Lil. Ent. 
226.  245. 

f  1  Sid.  40.   1  Salk.  266. 

s  Append.  Chap.  XLIH.  § 
26. 


OF  ERROR.  1105 

first  day  of  term,  the  plaintiff  in  error  is  to  transcribe 
the  same  term,  allege  diminution  the  term  follow- 
ing, assign  errors  the  next  term,  and  argue  them 
the  fourth  term :  but  if  the  defendant  in  error,  in- 
stead of  serving  the  rule  to  transcribe  at  the  return 
of  the  writ,  neglect  it  for  a  term  or  two,  the  plain- 
tiff must  transcribe  in  that  term  in  which  the  rule 
is  served,  allege  diminution  the  same  term,  assign 
errors  the  term  following,  and  argue  them  the  third 
term  ^.  A  copy  of  the  rule  to  allege  diminution 
being  made,  and  served  on  the  attorney  for  the 
plaintiff  in  error,  it  is  incumbent  on  him  to  allege 
diminution,  within  the  eight  days  allowed  by  the 
rule ;  and  if  he  neglect  to  do  so,  the  clerk  of  the 
errors,  on  being  applied  to,  with  an  affidavit  of 
the  service  of  a  copy  of  the  rule,  will  sign  a  nonpros ', 
and  tax  the  defendant  in  error  his  costs ;  but  unless 
an  affidavit  be  made,  he  usually  sends  to  the  at- 
torney for  the  plaintiff  in  error,  and  if  diminution 
be  not  alleged  by  the  next  morning,  he  will  then 
sign  the  nonpros  of  course,  and  tax  the  costs  ^. 

When  the  plaintiff  in  error  has  alleged  dimi- 
nution, the  next  step  to  be  taken  by  the  defendant 
in  error,  is  to  give  a  rule  for  the  plaintiff  to  assign 
errors;  which  is  thtjirst  proceeding  on  a  writ  of 
error  coram  nobis,  and  may  be  given  immediately 
after  the  allowance  and  notice  of  the  writ  of  error ' : 

It 

hL.  P.E.  92.  kimp.  K.B.  675. 

■'  Append.  Chap.  XLIII;  §  '  2  Cromp.  394.  Imp.  K.  B. 
78,  &c.  734.   L.P.  E.  78. 

Vol.  II.  3  L 


1106 


OF   ERROR. 


It  is  also  the  first  proceeding  after  the  transcript 
is  brought  in,  on  a  writ  of  error  by  the  plaintiff  to 
reverse  his  own  judgment  *".  In  the  King's-Bench, 
this  is  aybwr-day  rule,  given  by  the  master",  on 
the  expiration  of  the  rule  to  appear  to  the  scire  fa- 
cias°\  and  after  being  entered  with  the  clerk  of  the 
rules,  a  copy  of  it  should  be  made,  and  served  on 
the  attorney  for  the  plaintiff  in  error. 

In  the  Ex  chequer- chamber,  if  the  plaintiff  in  er- 
ror allege  diminution,  the  rule  to  assign  errors  is 
given  the  next  term,  with  the  clerk  of  the  errors, 
in  like  manner  as  the  rule  to  allege  diminution, 
and  expires  in  eight  days  after  service  p.  On  a  writ 
of  error  returnable  in  parliament,  when  the  tran- 
script is  brought  in,  a  peer  moves  the  house,  with- 
out any  previous  proceeding,  for  a  day  to  be  given 
the  plaintiff  in  error  to  assign  his  errors,  which  is 
ordered  accordingly  ^ ;  and  ought  to  be  done  within 

eight 


^  3  Bur.  1771. 

n  Append.  Chap.  XLIII.  § 
27. 

o  6  T.  R.  367.  and  see  2 
Str.  917.  In  the  case  of  Sam- 
bridge  V.  Housleij,  in  Error, 
2  T.  R.  17.  it  was  holden,  that 
the  rule  to  assign  errors  might 
be  given,  at  the  same  time  as 
the  rule  to  appear  to  the  scire 
facias  i  but  according  to  this 
determination,  the  rule  to  as- 
sign errors,  which  expires  in 


four  days  inclusive,  would  have 
expired  before  the  rule  to  ap- 
pear tj)  the  scire  facias,  which, 
we  have  seen,  does  not  expire 
till  four  days  exclusive  :  ante, 
1 102.  and  therefore  the  prac- 
tice was  altered  as  above. 

p  Append.  Chap.  XLIII.  § 
28. 

q  For  the  form  of  the  order, 
see  Append.  Chap.  XLIII.  § 
29. 


i 


OF  ERROR.  1107 

eight  days  after  the  bringing  in  of  the  writ  of  error, 
with  the  record  ^  Within  the  time  limited  by  the 
rule  or  order  to  assign  errors,  if  they  are  not  as- 
signed, the  defendant  in  error  may  sign  a  non/>ro5  *, 
and  is  entitled  to  costs. 


An  assignmejit  of  errors  is  in  nature  of  a  declara- 
tion '^;  and  is  either,of  errors  mfact,  or  errors  in  law. 
The  former  consist  of  matters  of  fact,  not  appearing 
on  the  face  of  the  record,  which,  if  true,  prove  the 
judgment  to  have  been  erroneous ;  as  that  the  de- 
fendant in  the  original  action,  being  under  age, 
appeared  by  attorney '';  that  a  y^-^Tze- plaintiff  or  de- 
fendant was  under  coverture,  at  the  time  of  com- 
mencing the  action "";  or  that  a  sole-plaintiff  or 
defendant  died  before  verdict,  or  interlocutory 
judgment  ^^ :  But  the  defendant  in  ejectment  is  not 
allowed  to  assign  for  error,  the  death  of  the  nominal 
plaintiff''.  An  assignment  of  errors  in  fact  should 
conclude  with  a  verification  ^ ;  and  in  assigning  the 

death 

r  Ordo  Do7n.  Proc.  die  Fen.  ^  j^^  §  32,  3. 

23  Dec.  1661.  w  Jd.  §  34,  &c. 

s  Append.  Chap.  XLIII.  §  "2  Str.  899.  but  see  1  Sid. 

78,  Sec.  93.  T.  Raym.  59.  S.  C.  where 

^  2  Bac.  Abr.  216.  it  was  assigned  for  error. 

"  Append.  Chap.  XLIII.  §  r  I  Bur.   410.  Carth.  367. 

"0,  3' .  but  see  Yelv.  58,  contra. 


1108  OF  ERROR. 

death  of  the  defendant  in  error,  the  assignment 
ought  not  to  conclude  in  the  common  way,  but  by 
praying  a  scire  facias  ad  audiendum  errores  against 
the  executor  or  administrator  of  the  defendant  in 
error;  and  if  the  sheriff  return  that  he  is  alive,  then 
he  may  come  in  and  plead  in  nullo  est  erratum;  or 
his  attorney  may  appear  for  him,  and  say  that  he 
is  alive  '^ :  but  if  the  sheriff  return,  that  he  has 
warned  the  executor  or  administrator,  tliat  will  be 
a  sufficient  ground  for  the  court  to  proceed  and 
examine  the  errors  ^ 

Krrors  in  law  are  common  or  special.  The  com- 
mon errors  are,  that  the  declaration  is  insufficient 
in  law  to  maintain  the  action;  and  that  the  judg- 
ment was  given  for  the  plaintiff,  instead  of  the 
defendant '',  or  vice  versa  :  Special  errors  are  the 
want  of  an  original  writ  "^  bill,  or  warrant  of  at- 
torney ^ ;  or  other  matter,  appearing  on  the  face 
of  the  record,  which  shews  the  judgment  to  have 
been  erroneous.  The  plaintiff  may  assign  several 
errors  in  law,  but  only  one  error  in  fact  ^ ;  and  he 
cannot  assign  error  in  fact  and  error  in  law  toge- 
ther, for  these  are  distinct  things,  and  require  dif- 
ferent trials  ^  It  is  also  settled,  that  nothing  can 

be 

2  1  Sid.  93.   T.  Raym.  59.        =  Id.  §  39. 
S.  C.  <i  Id.  §  44.  59. 

a  Carth.  339.  e  p.  N.  B.  20. 

fe  Append.  Chap.  XLIII.  §        f  2   Bac.  Abr.  217.    2  Ld. 

58.  57,  8.  65,  6.  Raym.  883.    1  Str.  439. 


OF  ERROR.  1109 

be  assigned  for  error,  which  contradicts  the  record  ^, 
or  was  for  the  advantage  of  the  party  assigning  it^; 
or  that  is  aided  by  appearance,  or  not  being  taken 
advantage  of  in  due  time  '.  Where  there  are  seve- 
ral plaintiffs  in  en'or,  they  must  join  in  assigning 
errors  ^,  unless  some  of  them  have  been  summoned 
and  severed :  And  where  the  assignment  has  been 
merely  calculated  for  delay,  the  court  have  in  some 
instances  set  it  aside  \  The  assignment  of  errors  is 
engrossed  on  treble-penny  stamped  paper,  and  need 
not  be  signed  by  counsel :  In  the  King's-Bench,  it 
is  delivered  to  the  defendant's  attorney;  in  the  Ex- 
chequer-chamber, and  House  of  Lords,  it  is  Jiled 
with  the  clerk  of  the  errors,  or  clerk  in  parliament. 
If  the  plaintiff  assign  for  error  the  want  of  an  ori- 
ginal  writ,  bill,  or  warrant  of  attorney,  &c.  or 
that  it  is  bad  in  point  of  law,  he  should  regularly 
take  oat  a  certiorari,  to  verify  his  errors :  for  it  is  a 
rule,  that  judgment  cannot  be  reversed,  for  want 
of  an  original  writ,  bill,  or  warrant  of  attorney, 
nor  for  any  supposed  error  or  defect  therein,  with- 
out a  certiorari "".  The  error  in  such  case,  unless 

confessed, 

8  2  Bac.   Abr.   218.   1  Str.  B.  676. 
684.  2  Ld.  Raym.  1414.  S.  C.        >   1    Str.    141.    545.   2  Str. 

1  Wils.  85.  S.  P.  899.  Lil.  Ent.  228.  inmarg. 

h  2  Bac.  Abr.  220.  iStr.  382.         "^  9  Edw.  IV.  34.  b.   1  RoL 

i  2   Bac.   Abr.   221.  2   H.  Abr.  764.  2  Ld.  Raym.  1398 

Blac.  267.  299.  1441.  Cas.  temfi.  Hardw.  118. 

J' 2  Bac.  Abr.  217.  Imp.  K.  19, 


1110  OF  ERROR. 

confessed,  is  not  considered  to  be  completely  as- 
signed, until  it  appear,  by  the  return  to  the  certi- 
orari^ that  it  is  well-founded" :  And  it  is  said,  that 
the  plaintiff  in  error  cannot  till  then  bring  in  the 
defendant,  to  plead  to  the  errors ".  Also,  by  the 
course  of  the  King's-Bench,  if  diminution  be  al- 
leged, errors  cannot  be  entered,  till  the  certiorari 
be  returned,  and  the  rules  to  plead  are  expired  p. 

A  certiorari  is  a  judicial  wrif,  issuing  out  of  the 
court  where  the  writ  of  error  is  depending,  on  a 
proper  precipe  "■,  and  directed  to  the  judge  or  of- 
ficer who  has  the  custody  of  the  writ,  or  other  mat- 
ter to  be  certified;  as  to  the  custos  brevium^  for  cer- 
tifying an  original  writ%  or  to  the  chief-justice,  for 
certifying  a  bill  ^  or  warrant  of  attorney  **,  &c. 
This  writ  is  tested  in  the  name  of  the  chief-justice 
of  the  King's-Bench,  when  it  issues  out  of  that 
court;  orwhen  itissuesout  of  the  Exchequer-cham- 
ber, in  the  name  of  the  chief-justice  of  the  court  of 

Common- 

■^  Com.  Rep.  115.  infant  to  sue  by  firochein  amiy 

"  2  Ld.  Raym.  1047.  an  imparlance  or  other  con- 

p  1  Keb.  211.  tinuance,  or  a  writ  of  inquiry, 

1  Barnes,  12.  the  certiorari  is  directed  to  the 

r  Append.  Cliap.  XLIII.  §  chief-justice  of  K.  B. ;  but  for 

40.  45.  certifying  warrants  of  attor- 

s  7rf.  §  41.  ney,  or  a  writ  of  inquiry,  in 

£  /rf.  §  60.  62 .  C.  P.  it  is  directed  to  the  custos 

•Oi  Id.   §  46.    62,    For  certi-  brevimn.    Lil.  Ent.   535,    &c. 

lying     bail    in    the    original  2  Ld.  Raym.    1476.    1  Wils 

action,  the   admission   of  an  85. 


OF   ERROR.  1111 

Common- Pleas ";  and  ought  not  to  bear  teste,  be- 
fore the  assignment  of  errors  ".  The  writ  of  certi- 
orari being  signed  and  sealed,  should  be  delivered 
to  the  judge  or  officer  to  whom  it  is  directed;  and 
is  made  returnable  immediate ^  or  without  delay  ". 
It  has  been  doubted,  whether  the  court  have  power 
to  amend  this  writ ''. 

When  a  certiorari  is  prayed,  the  defendant  in  er- 
ror may  either  come  in  gratis,  and  confess  the  want 
of  an  original,  &c.  by  pleading  i?i  nulla  est  erratum"^, 
or  a  release  *,  which  renders  it  unnecessary  for  the 
plaintiff  in  error  to  sue  out  a  certiorari;  or,  if  there 
be  an  original,  &c.  he  may  go  to  the  master  of  the 
office,  in  the  King's-Bench,  and  get  a  rule  for  the 
plaintiff  in  error  to  return  his  certiorari  ^  This  is 
a  ybwr-day  rule,  given  by  the  master,  on  the  back 
of  the  draft  of  the  scire  facias  quare  executionem  non; 
and  after  being  entered  with  the  clerk  of  the  rules, 
a  copy  of  it  is  served  on  the  plaintiff's  attorney. 
In  the  House  of  Lords,  it  is  a  rule,  that  if  the 

plaintiff 

"'iStr.  819.   2  Ld.  Raym.  2   Ld.  Raym.   1005.  6  Mod. 

1554.  S.C.  113.  206.   S.  C.   2Ld.  Raym. 

wLil.  Ent.  555,  &c.  Imp.  1047.  3  Salk.  214.6  Mod.  235. 

K.B.  680.  Holt,  563.  S.  C. 

X  Lil.  Ent.  555,  &c.  ''Com.    Rep.   115.   1  Salk. 

^Barnes,  12.  267.  2  Ld.  Raym.    1156.   S. 

^  1  Salk.  267.2  Ld.  Raym.  C.   Append.  Chap.  XLIII.  § 

1156.  S.  C.  2  Str.  907.  S.  P.  42. 

^  1  Salk.  268.  3  Salk.  399. 


1112  Ot    ERROR. 

plaintiff  in  error  allege  diminution,  and  pray  a 
certiorari^  the  clerk  shall  enter  an  award  thereof 
accordingly ;  and  the  plaintiff  may,  before  in  nullo 
est  erratum  pleaded,  sue  forth  the  writ  of  certiorari 
in  ordinary  course,  without  special  petition,  or 
motion  to  the  house,  for  the  same;  and  if  he  do  not 
prosecute  such  writ,  and  procure  it  to  be  returned, 
within  ten  days  next  after  his  plea  of  diminution 
put  in,  then,  unless  he  shall  shew  good  cause  to  the 
House,  for  enlarging  the  time  for  the  return  of 
such  writ,  he  shall  lose  the  benefit  of  the  same, 
and  the  defendant  in  error  may  proceed,  as  if  no 
such  writ  of  certiorari  were  awarded ''.  This  is  the 
common  course  of  proceeding :  but  if  the  House 
be  soon  about  to  rise,  they  will,  upon  petition,  of 
which  there  must  be  two  days  previous  notice,  or- 
der the  plaintiff  in  error  to  return  the  writ  of  cer- 
tiorari by  a  short  day. 

Within  the  time  allowed  to  the  plaintiff  in  error, 
for  the  return  of  the  certiorari^  he  either  gets  it  re- 
turned, or  not :  If  it  be  not  returned,  the  assign- 
ment of  the  want  of  an  original,  &c.  is  of  no  effect; 
and  the  defendant  in  error  having  entered  on  record 
a  non  misit  breve'^,  may,  notwithstanding  such  as- 
signment, plead  in  nullo  est  erratum^  and  proceed  to 
uflirm  the  judgments  If  a  return  be  made  to  the 

writ 

-  Ordo  Dom.  Froc.  die  Fen.     54. 
13  Dec.  1661.  e  I  Salk.  267.  2  Ld.  Rayiri 

d  Append.  Chap.  XLIII.  §     1156.  S.  C    2  Cromp.  374. 


OF   ERROR.  1113 

writ  of  certiorarij  it  is  either  that  there  is,  or  is 
not  an  original  writ,  bill,  or  warrant  of  attorney, 
&c  ^  And  as  diminution  cannot  be  alleged,  so  it  is 
a  rule,  that  a  matter  cannot  be  returned  to  the  ceV' 
tiorariy  contrary  to  the  record  ^.  The  return  being 
made,  is  filed  in  the  treasury  of  the  court,  where 
the  defendant's  attorney  should  search  for  it. 

We  have  already  seen  ^,  that  the  want  of  an  ori- 
ginal writ  or  bill  is  aided  after  verdict,  by  the  sta- 
tute  18  Eliz.  c.  14.  but  not  after  judgment  by  de- 
fault or  confession,  or  upon  demurrer  or  nul  tiel 
record.  Therefore,  if  the  want  of  an  original  after 
verdict  be  assigned  for  error,  the  defendant  in  er- 
ror may  confess  it,  by  pleading  in  niillo  est  erratum: 
But  if  a  writ  of  error  be  brought  after  a  judgment 
by  default,  &c.  it  is  usual  for  the  defendant  in  error, 
if  there  be  no  original  already  sued  out,  to  present  a 
petition '  to  the  Master  of  the  Rolls,  praying  that 
the  cursitor  of  the  county  where  the  venue  is  laid, 
may  be  directed  to  issue  an  original,  with  a  proper 
return ''.  This  petition  must  be  presented,  before 
the  defendant  in  error  takes  out  a  rule  for  tiie  plain- 
tiff to  return  the  certiorari:  And  an  order'  being 
obtained  thereon,  a  copy  of  the  petition  and  order 
should  be  forthwith  served  on  the  adverse  attorney; 

and 

f  Append. Chap.  XLIII.  §         i  Append.  Chap.  V.  §  15. 
43.  47.  63.  k  Jntet  103,  4.  and  see  6  T- 

k2  Ld.  Raym.  1123,  4.  R.  544. 

H  Ante^  102.  »  Append.  Chap.  V.  §  17- 

Vol.  IL  3M 


1114  OF  ERROR. 

and  if  he  do  not  in  two  or  three  days  make  his  elec- 
tion, either  to  accept  the  costs  in  error,  or  prose- 
cute his  writ,  the  costs  in  error  must  be  tendered 
him;  and  if  he  accept  thereof,  the  defendant  in 
error  may  immediately  sign  a  nonpros,  and  after 
entering  a  remittitur,  take  out  execution  on  the 
judgment "" ;  but  if  he  refuse  to  accept  the  costs, 
choosing  rather  to  prosecute  his  writ  of  error,  the 
petition  and  order  should  be  delivered  to  the  cur- 
sitor,  who  will  make  out  the  original  writ,  which 
must  be  returned  by  the  sheriff,  and  then  filed  with 
the  ciistos  brevium  ",  The  same  course  is  observed, 
after  an  amendment  of  the  proceedings  in  the  ori- 
ginal action,  pending  a  writ  of  error;  upon  which 
the  plaintiff  in  error  may  make  his  election,  either 
to  accept  the  costs,  or  prosecute  his  writ  °. 

The  plaintiff  in  error  can  have  but  one  writ  of 
certiorari  ^:  Therefore,  where  he  took  out  a  certi- 
orari of  a  wrong  term,  which  did  not  verify  his 
error,  and  afterwards  moved  for  a  second  certiora- 
ri, it  was  denied  him ;  the  court  saying,  it  may  be 
granted  to  affirm,  but  not  to  reverse  a  judgment  "J. 
But  if  it  be  certified,  on  the  plaintiff's  writ,  that 
there  is  no  original  %  or  warrant  of  attorney  %  or 

one 

•^L.  P.  E.  30,  819.  S.  P. 

"/rf.  31,32.  «•  Cro.  Car.  9 1 . 

o  Ante,  664.  ^  Cro.  Jac.  277.  1  Salk.  266. 

PCro.  Jac.  597.  6Mod.  174.  S.  C. 

q  2  Str.  765.  and  see  id. 


11 


OF  ERROR.  1115 

one  that  is  bad,  or  warrants  not  the  declaration  % 
the  defendant  in  error  may,  at  any  time  before  i?i 
nullo  est  erratum  pleaded,  make  a  suggestion  that 
there  is  an  original  or  warrant  of  attorney,  or  a 
good  one  of  a  different  term,  or  even  of  the  same 
term  with  the  placita  ",  and  pray  a  certiorari  for 
certifying  it;  and  if  a  good  original  be  returned, 
the  court  will  not  inquire  when  it  was  filed;  or  if  a 
bad  original  was  before  certified,  they  will  disre- 
gard it,  and  apply  the  record  to  that  which  is  good 
and  will  support  the  judgment.  But  it  is  a  rule  ^^ 
that  no  certiorari  upon  a  writ  of  error,  shall  be  su- 
ed out  or  made  by  any  attorney,  after  a  certiorari 
in  the  same  cause  hath  been  already  sued  out  and 
returned,  without  motion  in  court  by  counsel. 

In  the  King's-Bench,  as  the  parties  have  no  day 
in  court  after  the  record  is  removed,  the  plaintiff 
in  error  may,  after  he  has  assigned  his  errors,  have 
a  scire  facias  ad  audiendum  error  es  ^''  against  the  de- 
fendant, who  thereupon  may  appear  and  plead  in 
nullo  est  erratum^  or  a  release  '',  &c.  But  in  prac- 
tice it  is  usual  for  the  defendant  in  error,  by  con- 
sent, to  take  notice  voluntarily  of  the  assignment 
of  errors ;  which  consent  is  testified  by  his  pleading 

in 

t  1  Rol.  Abr.  765.  Cro.  Jac.  w  Append.  Chap.  XLIII.  § 

130.  597.  Cro.  Car.  410.  48,  &c. 

"Com.    Rep.    118.    1  Salk.  '^  2  Bac.   Abr.  207.    F.N. 

267.  2  Ld.  Raym.  1476.  B.  44. 

•'  R.  E.  11  Car.  I. 


1116  of  i.kkok. 

in  nullo  est  erratum,  and  then  there  is  ho  occasion 
for  a  scire  facias  ad  aiidiendum  errores  ^.  Where  a 
scire  facias  is  sued  out,  and  the  defendant  does  not 
appear  and  join  in  error,  the  plaintiff  may  move  to 
reverse  the  judgment,  upon  producing  the  record 
of  the  scire  facias,  with  the  sheriff's  return  oi  scire 
feci,  and  an  entry  of  the  defendant's  default,  with- 
out taking  out  a  rule  to  join  in  error ',  and  even 
without  moving  for  a  concilium,  or  putting  the 
cause  in  the  paper  *. 

The  Exchequer-chamber  not  having  the  record 
before  them,  but  only  a  transcript,  do  not  award 
a  scire  facias  ad  audiendutn  errores,  but  notice  is 
given  to  the  parties  concerned  ^ :  And  in  the  House 
of  Lords,  the  plaintiff  must  get  a  peer  to  move  the 
house,  that  on  assigning  errors,  the  defendant  may 
appear  and  make  his  defence.  In  error  to  reverse 
a  common-recovery,  there  ought  to  be  2i  scire  facias 
against  the  tertenants,  ad  audiendum  processum  et 
fecordum'^ ;  but  to  this  they  can  only  plead  a  re- 
lease of  errors'^. 

To  an  assignment  of  errors,  the  defendant  may 
plead  or  demur.  Pleas  in  error  are  common  or 
special.  The  common  plea,  of  joinder,  as  it  is  more 

frequently 

yCarth.  41.  c  1  Leon.  ^90.    1   Lev.  72. 

«^  1  Str.  144.  Carth.   111.    Append.   Chap 

»3  9tr.   1210.  XLIII.  §  52. 
^  1  Vent.  34.  d  1  Bur.  360.  Jnte,  1034. 


OF  ERROR.  1117 

frequently  called,  is  in  nullo  est  erratum  ^,  or  that 
there  is  no  error  in  the  record  or  proceedings : 
which  is  in  the  nature  of  a  demurrer,  and  at  once 
refers  the  matter  of  law  arising  thereon,  to  the 
judgment  of  the  court. 

If  the  plaintiff  in  error  assign  an  error  in  fact, 
and  the  defendant  in  error  would  put  in  issue  the 
truth  of  it,  he  ought  to  traverse  or  deny  the  fact, 
and  so  join  issue  thereupon,  and  not  say  in  nullo  est 
erratum;  for  by  so  doing,  he  would  acknowledge 
the  fact  alleged  to  be  true '  :  But  when  an  error  in 
fact  is  assigned,  if  the  defendant  would  acknow- 
ledge the  fact  to  be  as  alleged,  and  yet  insist  that 
by  law  it  is  not  error,  he  ought  to  rejoin  in  nullo  est 
erratum  ^.  Hence  it  appears,  that  if  an  error  in  fact 
be  well  assigned,  in  nullo  est  erratum  is  a  confes- 
sion of  it;  for  the  defendant  ought  to  have  joined 
issue  thereon,  so  as  to  have  it  tried  by  the  country: 
But  if  an  error  in  fact  be  assigned  that  is  not  as- 
signable, or  be  ill  assigned,  in  nullo  est  erratum  is 
no  confession  of  it,  but  shall  be  taken  only  for  a 
demurrer  ^. 

If  error  be  alleged  in  the  body  of  the  record,  in 
nullo  est  erratum  is  a  good  rejoinder;  for  this  shall 
put  the  matter  in  the  judgment  of  the  court,  the  re- 
cord 

e  Append.  Chap.  XLIII.  §        f  1  Rol.  Abr.  763. 
53,  4.  64.  67.  s  2  Bac.  Abr.  218 


1118  OF  ERROR. 

cord  being  agreed  to  be  as  stated^.  So  if  error  be 
alleged  in  a  matter  of  record,  which  is  not  of  the 
body  of  the  record,  but  in  a  collateral  thing,  as  that 
there  is  no  record  of  resummons,  in  nullo  est  erra- 
tum is  a  good  rejoinder;  for  if  the  plaintiff  in  error 
do  not  allege  diminution,  and  thereupon  procure  a 
certificate  from  the  inferior  court,  that  there  is  not 
any  resummons,  before  the  rejoinder  entered,  the 
assignment  is  of  no  effect,  but  void,  inasmuch  as 
this  is  to  be  tried  by  the  record  itself,  and  no  di- 
minution can  be  alleged  after  rejoinder  entered; 
and  though  the  defendant  confess  the  error,  yet  the 
court  ought  not  to  reverse  the  judgment,  till  they 
are  satisfied  it  is  erroneous  by  the  record  itself '. 
If  the  plaintiff  in  error  assign  error  in  fact  and  er- 
ror in  law,  which  we  have  seen  cannot  be  assigned 
together,  and  the  defendant  in  error  plead  in  nullo 
est  erratum^  this  is  a  confession  of  the  error  in  fact, 
and  the  judgment  must  be  reversed  ^ ;  for  he 
should  have  demurred  for  the  duplicity,  upon 
which  the  judgment  would  have  been  affirmed '. 

By  pleading  in  nullo  est  erratum^  the  defendant  in 
error  admits  the  record  to  be  perfect,  the  effect  of 

his 

5i  1  Rol.  Abr.  763.  338,  9.  Comb.  321.  S.  C. 

i  Id.  764.  9Edw.  IV.  32.  b.        i  2  Ld.  Raym.  883.  1  Str 
^2Bac.  Abr.   218.   Carth.     439. 


OF   ERROR.  1119 

his  plea  being,  that  the  record  in  its  present  state 
is  without  error";  and  therefore,  after  in  ?iulio  est 
erratum  pleaded,  neither  party  can  allege  diminu- 
tion, or  pray  a  certiorari'\  But  though  the  parties 
are  bound  by  their  own  admission,  and  that  equal- 
ly so  as  to  every  part  of  the  record,  yet  no  admis- 
sion of  the  parties  can  or  ought  to  restrain  the  court 
from  looking  into  the  record  before  them  °.  Hence 
it  is  a  general  rule,  that  at  any  time  pending  a  writ  of 
error,  whether  before  ^  or  after  errors  assigned,  or 
even  after  in  nullo  est  erratum  pleaded  "^j  the  court 
ex  officio  may  award  a  certiorari;  and  they  may  do 
this  to  supply  a  defect  in  the  body  of  the  record "", 
as  well  as  in  its  out-branches. 

When  the  plaintiff  assigns  for  error  the  want  of 
an  original  or  warrant  of  attorney,  and  the  defend- 
ant comes  in  gratis^  and  confesses  the  matter  as- 
signed for  error,  by  pleading  in  nullo  est  erratum  % 
or  a  release  S  without  putting  the  plaintiff  to  the 
necessity  of  suing  out  a  certiorari^  to  verify  his 
errors,  the  court,  for  their  own  information,  may 
award  this  writ,  in  order  if  possible  to  support  the 
judgment.  And  so  if  error  be  assigned  in  the  ori- 
ginal 

"  1  Salk.  270.  Cas.  tcmli.  Hardw.  118,  19. 
"  Id.  269.  2  Cromp.  378.  r  i  Salk.  270. 

o  Id.  270.  s  2  Str.  907. 

p  1  Str.  440.  t  1  Salk.  268.  2  \A.  Raym. 

4  I  Rol.  Abr.  764, 5.  I  Salk.  1005.  S.  C. 
269.  2Ld.Raym.  1005.  S.C- 


1120  OF   ERROR. 

ginal  writ,  and  upon  a  certiorari  granted,  an  erro- 
neous original  be  returned,  upon  which  in  nullo  est 
erratum  is  pleaded,  and  after  the  court  grant  a  se- 
cond certiorari  for  another  original,  and  upon  this 
a  good  original  is  certified,  the  court  will  intend 
this  to  be  the  original  on  which  the  judgment  was 
given,  in  favour  of  judgments,  which  ought  to  be 
intended  good,  till  the  contrary  is  manifest ".  But 
though  the  court  ex  ojicio  will  award  a  certiorari 
to  affirm  a  judgment,  yet  they  will  never  award 
one  to  reverse  it,  or  make  error  \ 

Special  pleas  to  an  assignment  of  errors  contain 
matters  in  confession  and  avoidance,  as  a  release 
of  errors  ^,  or  the  statute  of  limitations  ",  &c.  to 
which  the  plaintiff  in  error  may  reply  or  demur, 
and  proceed  to  trial  or  argument.  A  release  of 
errors  contained  in  a  warrant  of  attorney  to  con- 
fess a  judgment  is  good,  though  given  before 
judgment,  provided  it  be  dated  in  the  term  of 
which  the  judgment  is  entered  up'':  But  where 
there  are  several  plaintiffs  in  error,  the  release  of 

one 

>i  1  Rol.   Abr.   765.    j1n(e,  granted  a  certiorari  to  reverse 

102,  3.  the  judgment,   as  well  as  to 

V  1  Salk.    269.    2  Str.  765.  affirm  it. 

319.  907.  Cas.   temfi.  Hardw.  w  2  Bac.  Abr.  225.  Append. 

118,  19.   but  see  2  Bac.  Abr.  Chap.  XLIII.  §  55,  6. 

205.  and  the  cases  there  cited,  *  Stat.  10  &  1 1  W.  III.  c. 

by  which  it  appears,  that  for-  14. 

merly  the  court  would  have  y2  Str.  1215. 


OF  ERROR.  1121 

one  of  them  shall  not  bar  the  others  ^  In  pleading 
a  release,  the  defendant  must  lay  a  venue;  but 
though  it  be  ill  pleaded,  yet  if  there  are  no  errors, 
the  court  will  affirm  the  judgment  ^  Where  error 
is  brought  on  a  judgment  that  the  j&aro/ shall  de- 
mur, the  non-age  cannot  be  pleaded  again,  for  that 
would  be  exceptio  ejusdem  ret,  cujus  petitur  disso- 
lutio  ^. 

The  plea  or  joinder  in  error,  &.c.  is  engrossed 
on  treble-penny  stamped  paper;  and  if  common, 
need  not  be  signed  by  counsel.  In  the  King's- 
Bench,  it  is  delivered  to  the  plaintiff's  attorney  "=: 
In  the  Exchequer-chamber,  or  House  of  Lords, 
it  is  filed  with  the  clerk  of  the  errors,  or  clerk  in 
parliament. 

Issue  being  joined  in  error,  the  proceedings  are 
entered  of  record :  And  on  a  writ  of  error  coram 
nobis,  they  must  be  entered  on  the  same  roll  as  the 
original  judgment,  or  former  writ  of  error '^  On 
a  writ  of  error  from  the  Common- Pleas,  the  entry 
is  made  by  the  attorney  for  the  plaintiff  in  error', 

on 

2  Cro.    Eliz.    648,   9.    Cro.  1433.  S.C. 

Jac.  116,  17.  3  Mod.  135.  <^  j^nCe,  62!i. 

•  1  Salk.  268.  3  Salk.  399.  d  Cro.    Eliz.    155.    281.     I 

2  Ld.   Rayra.    1005.  6  Mod.  Ld.  Raym.    151.  Carth.  369. 

113.  206.  S.  C. 

^  2  Str.  861.  2  Ld.  Raym.  «  ^ntCf  666. 

Vol.  II.  .3N 


1122  OF   ERROR. 

on  difFerent  rolls,  intitled  of  the  term  the  transcript 
is  brought  in;  and  begins  with  the  writ  of  error 
and  return,  after  which  the  proceedings  in  the 
Common- Pleas  are  entered,  to  the  end  of  the  final 
judgment;  then  follows  the  assignment  of  errors, 
and  if  it  be  of  errors  in  fact,  the  plea  and  replica- 
tion, &c.  are  next  entered,  with  an  award  of  the 
ve?iire  facias  *^,  or  if  it  be  of  errors  in  law,  there  is 
an  entry  of  the  joinder,  with  a  continuance  by  curia 
advisari  vult  ^. 

On  an  issue  mjact^  a  record  ofnisiprius^  is  made 
up,  and  the  parties  proceed  to  trial,  as  in  common 
cases;  and  after  verdict,  the  party  for  whom  it  is 
found,  must  move  to  put  the  cause  in  the  paper  for 
argument';  and  then,  on  producing  the  postea,  the 
court  will  give  judgment,  according  to  the  finding : 
In  this  case,  the  defendant,  as  well  as  the  plaintiff", 
may  carry  down  the  cause  to  trial,  without  a  rule 
for  trying  it  hy  proviso. 

On  an  issue  in  law^  either  party  may  move  for  a 
concilium  ^  in  the  King's  Bench,  draw  up  and  serve 
the  rule,  enter  the  cause  with  the  clerk  of  the  pa- 
pers, and  proceed  to  argument,  as  on  demurrer. 
Previous  to  the  day  of  argument,  copies  of  the 
books,  or  proceedings  in  error,  should  be  delivered 

(as 

f  Append.  Chap.  XLIII.  §        '  1  Str.  627. 
68.  k  Append.  Chap.  XLIII.  § 

g  Id.  §  69,  &c.  75. 

h  Id.  77. 


OF  ERROR.  1125 

(as  on  demurrer,)  by  the  plaintiff  or  his  attorney, 
on  unstamped  paper,  to  the  chief-justice  and  ^e/w'or 
judge,  and  by  the  defendant  or  his  attorney,  to  the 
other  judges  ^;  in  which  should  be  inserted  the 
names  of  the  counsel  who  signed  the  pleadings ""  : 
and  the  exceptions  intended  to  be  insisted  upon  in 
argument  should  be  marked  in  the  margin ".  If  ei- 
ther party  neglect  to  deliver  the  books,  they  ought 
to  be  delivered  by  the  other;  and  in  that  case,  the 
party  neglecting  cannot  be  heard,  but  judgment 
will  of  course  be  given  against  him  °. 

In  the  Exchequer-chamber,  there  are  no  more 
than  two  return-days  in  every  term;  one  is  called 
the  general  affirmance -^2.y^  being  appointed  by  the 
judges  of  the  Common-Pleas,  and  barons  of  the 
Exchequer,  to  be  held  a  few  days  after  the  begin- 
ning of  every  term,  for  the  general  affirmance  or  re- 
versal of  judgments,  the  other  is  called  the  adjourn- 
ment-dajj  which  is  usually  held  a  day  or  two  before 
the  end  of  every  term.  On  the  first  of  these  days, 
judgments  are  affirmed  or  reversed,  or  writs  of  error 
nonprossed;  the  intent  of  the  latter  is  to  finish  such 
matters  as  were  left  undone  at  the  former;  on 
which  last-mentioned  day  also,  as  well  as  on  the 
first,  judgments  may  be  affirmed  or  reversed,  or 

writs 

»  R.  M.  17  Car.  I.  and  see  "  R.  E.  2  Jac.  II.  revived 

3  R.  E.  2  Jac.  II.  (a).  R.  T.  by  R.  H.  38  G.  III. 

40  G.  III.   1  East,  131.  ^ntcy  °  R.  M.  17  Car.  I.  Imp.  K. 

687.  B.  686. 

■nR-E.  18  Car.  IL 


1124  OF  ERROR. 

writs  of  error  nonprossed,  on  paying  an  additional 
fee  to  the  clerk  of  the  errors,  and  setting  down  the 
cause  two  days  before  the  adjournment-day  p. 

The  proceedings  in  this  court  are  entered  by  the 
clerk  of  the  errors,  who  sets  down  the  cause,  at  the 
instance  of  either  party,  without  a  motion  for  a 
concilium  :  In  making  the  entry,  after  setting  forth 
the  writ  of  error  and  return,  and  the  proceedings 
in  the  court  of  King's-Bench,  a  day  is  given  to  the 
plaintiff  to  assign  errors;  after  which,  the  assign- 
ment of  errors,  and  other  subsequent  proceedings, 
are  entered  on  the  return-days  they  are  put  in,  with 
a  separate  placita  for  each  day''.  It  is  a  rule,  in 
the  Exchequer-chamber,  that  no  copy  of  error 
and  record  thereupon  be  delivered  to  the  justices 
or  barons,  before  the  attorney  for  the  plaintiff  in 
error  shall  have  given  ten  days  notice,  to  the  clerk 
cf  the  errors  in  the  Exchequer-chamber,  that  the 
error  assigned  in  the  record  is  to  be  argued,  before 
the  said  justices  and  barons,  for  both  parties;  and 
that  the  attorney  for  the  plaintiff  shall  deliver  four 
copies  to  the  justices  of  the  Common- Pleas,  and 
the  attorne)-  for  the  defendant  shall  deliver  four 
other  copies  to  the  barons  of  the  Exchequer,  four 
days  before  the  hearing  of  the  cause  "":  To  enable 
the  parties  to  deliver  these  copies,  a  transcript  of 

the 

pL.  P.  E.  181,2.  rR.  E.  33  Car.  II.  Imp. 

1   Id.     175,    8cc.    Append.     K.  B.  677. 
Chap.  XLIII.§76,  &c. 


OP  ERROR.  1125 

the  proceedings  is  made  for  them,  6y  the  clerk  of 
the  errors. 

In  the  House  of  Lords,  when  the  defendant  hath 
joined  in  error,  the  cause  is  set  down,  on  the  mo- 
tion of  a  peer,  to  be  heard  in  turn  ;  after  which,  if 
the  house  is  likely  to  be  soon  up,  either  party  may 
on  petition  %  of  which  two  days  previous  notice 
should  be  given  to  the  other,  have  the  cause  ap- 
pointed for  a  short  day.  And  when  a  day  is  ap- 
pointed for  hearing  the  cause,  the  same  cannot  be 
altered,  but  upon  petition ;  and  no  petition  can  in 
such  case  be  received,  unless  two  days  notice 
thereof  be  given  to  the  adverse  party,  of  which  no- 
tice oath  is  to  be  made  at  the  bar  of  the  house  ^ 
Previous  to  the  argument,  the  cases  for  both  par- 
ties must  be  drawn  up,  and  signed  by  counsel"; 
and  it  is  usual  to  deliver  250  printed  copies  of  it 
on  each  side,  at  the  Parliament-office,  some  of 
which  are  given  to  the  lords,  and  others  to  the 
judges. 

On  the  day  appointed  for  argument,  the  counsel 
for  the  parties  are  heard,  being  previously  in- 
structed, and  furnished  with  copies  of  the  paper- 
books,  or  printed  cases ;  and  if  there  be  no  argu- 
ment, one  of  them  moves  for  judgment  of  affirmance 
or  reversal.  If  the  errors  be  argued,  one  counsel 

onlv 

*  Append.  Chap.  XLIII.  §     22  Dec  1703. 
90.  ^Ordo  Dom .  Proc.  die  Mart. 

»  Ordo  Dom.  Proc.  die  Merc.     19  jlfi.  1 698. 


1126  OF   ERROR. 

only  is  heard  on  each  side,  in  the  King's-Bench ; 
the  counsel  for  the  plaintiff  in  error  begins,  the 
counsel  for  the  defendant  is  then  heard,  and  the 
plaintiff's  counsel  replies'":  In  the  House  of  Lords, 
no  more  than  two  counsel  can  be  heard  on  eacli 
side  ^\ 


The  judgment  in  error,  unless  the  court  are 
equally  divided  in  opinion,  is  to  affirm^  or  to  recal 
or  reverse  the  former  judgment;  that  the  plaintiff 
be  barred  of  his  writ  of  error ;  or  that  there  be  a 
venire  facias  de  novo.  The  common  judgment  for 
the  defendant  in  error,  whether  the  errors  assigned 
be  in  fact  or  in  law,  is  that  the  former  judgment  be 
a^rmed"^ :  So  on  a  demurrer  to  an  assignment  of 
errors,  in  fact  and  in  law,  for  duplicity,  the  judg- 
ment is  guod  affirmetur  ^.  For  error  in  Jact,  the 
judgment  is  recalled,  revocatur  ^;  and  for  error  in 
law,  it  is  reversed ''.  On  a  plea  of  release  of  errors '', 
or  the  statute  of  limitations  '^j  found  for  the  de- 
fendant, the  judgment  is,  that  the  plaintiff  be 
barred  of  his  writ  of  error.  It  has  already  been 

shewn, 

V  Jnte,  462.  ^  Append.  Chap.  XLIII.  § 

w  2  Cromp.  389.  84,  5. 

:i  Append.  Chap.  XLIII.  §        ^  1   Show.   50.    1  Str.  127. 

83.  86.  91.  683.  but  see  Ast.  Ent.   339. 

y  Yelv.    58.    2  Ld.  Raym.     1  Str.  382.  aemb.  contra. 

883.    1  Str.  439.  c  2    Str.    1055.    Cas.    tem/L 

2  2  Bac.  Abr.  230.  Hardw.  345.  S.  C 


OF  ERROR. 


1127 


shewn,  in  what  cases  a  venire  facias  is  grantable  de 


novo 


When  the  court  of  King's-Bench  are  equally 
divided  in  opinion,  upon  a  writ  of  error,  it  seems 
there  can  be  no  rule  for  affirming  or  reversing  the 
judgment,  without  consent ;  and  therefore,  in  the 
case  of  Thornby  v.  Fleetwood  ^^  the  court  being 
divided  in  opinion,  a  rule  was  made,  w^ith  the 
assent  and  at  the  instance  of  the  lessor  of  the  plain- 
tiff, to  expedite  the  determination  of  the  cause,  in 
the  House  of  Lords  ;  whereby  it  was  ordered,  that 
the  judgment  should  be  affirmed  *'.  But  in  the 
Exchequer-chamber,  it  is  the  practice,  upon  a 
division,  to  affirm  the  judgment,  as  w^as  done  in 

the 


^  Ante^  831,  2. 

«=  1  Str.  379. 

fLil.  Ent.  524.  By  the 
statute  14  Edw.  III.  it  is  pro- 
vided, "  that  whereas  causes 
"  have  been  delayed  for  dif- 
"  ficulty  and  division  in  opi- 
".nions;  therefore  to  remedy 
"  the  delays  occasioned  there- 
"  by,  there  shall  in  every  par- 
"  liament  be  chosen  a  pre- 
"  late,  two  earls,  and  two 
"  barons,  who  by  good  ad- 
"  vice  of  others  are  to  give 
"  judgment,  or  if  they  can- 
"  not  determine  it,  that  then 
"  the  record  shall  be  brought 
"  into  parliament,  who   shall 


"  make  a  final  accord ;  and 
"  the  judges  before  whom  the 
"  cause  is  depending  shall 
"  proceed  to  give  judgment, 
"  pursuant  to  their  direc- 
"  tions."  But  there  appear  to 
be  no  footsteps  for  centuries, 
of  any  such  appointment  of  a 
prelate,  two  earls,  and  two  ba- 
rons; and  the  court  of  King's- 
Bench,  in  the  above  case, 
thought  it  would  be  improper, 
on  a  writ  of  error  from  the 
Common-Pleas,  to  adjourn  the 
cause  for  difficulty  into  the 
Exchequer-chamber,or  House 
of  Lords.    '  ^tr.  .18^. 


1128  OF  ERROR. 

the  case  of  Deighton  v.  Greenville  ^ :  And  so  is  the 
practice  in  the  House  of  Lords ;  which  depends  on 
their  mode  of  putting  the  question  to  reverse  the 
judgment,  a  majority  being  required  to  reverse  iV\ 

A  judgment,  when  entire,  cannot  regularly  be 
reversed  in  part,  and  affirmed  for  the  residue '. 
Therefore,  where  A.  brought  an  action  on  the  case 
against  B.  for  words  spoken  of  him,  and  for  caus- 
ing him  to  be  indicted,  &c.  and  the  jury  found  a 
verdict  for  the  plaintiff  as  to  both,  with  entire  da- 
mages, yet  it  being  afterwards  holden  that  the 
words  were  not  actionable,  the  judgment  was  re- 
versed in  toto^ :  But  if  part  of  the  words  laid  be  not 
actionable,  and  several  damages  are  given,  it 
seems  that  judgment  shall  be  reversed  in  part 
only '. 

Where  there  are  several  dependent  judgments, 
and  the  principal  one  is  reversed,  the  other  cannot 
be  supported :  As  if  a  man  recover  in  debt  upon  a 
judgment,  if  the  first  judgment  be  reversed,  the 
second  falls  to  the  ground "".  But  the  reversal  of 
the  last  judgment  will  not  affect  the  first :  As  if  a 
judgment  be  given  against  executors ^  in  an  action  of 

debt. 

g  1    Sho\V.    36.     Cruise  on  825. 

Fines, 222.  k  2  Bac.  Abr.  228. 

ii  1  Str.  383.  i  1  Str.  188. 

i  2  Bac.  Abr.   227.    1  Ld.  "^2  Bac.  Abr.  229. 
Raym.  255,  6.    2  Ld.  Raym 


OF  ERROR.  1129 

debty  and  after  a  scire  facias,  judgment  is  given 
against  them,  to  have  execution  of  their  proper 
goods,  and  a  writ  of  error  is  brought  upon  both 
judgments;  in  this  case,  if  the  first  judgment  be 
good,  and  the  last  erroneous,  the  last  judgment 
only  shall  be  reversed,  and  the  first  shall  stand ". 

So  if  there  be  several  distinct  and  independent 
judgments,  the  reversal  of  the  one  shall  not  affect 
the  other  :  As  in  an  action  of  account,  if  judgment 
be  given  quod  computet,  and  after  auditors  are  as- 
signed, and  upon  the  account  judgment  is  given 
against  the  defendant  also,  with  damages  and  costs, 
and  after  a  writ  of  error  is  brought  upon  both  judg- 
ments, and  thereupon  the  last  judgment  only  is 
found  to  be  erroneous;  in  this  case,  the  last  judg- 
ment only  shall  be»reversed,  and  not  the  first  judg- 
ment, but  that  shall  stand  in  force  ;  for  these  are 
two  distinct  and  perfect  judgments,  the  first  judg- 
ment being  ideo  consideratum  est  quod  computet,  et 
defendens  in  misericordid  °.  So  if  the  judgment  con- 
sist of  several  distinct  and  independent  parts,  it 
may  be  reversed  as  to  one  part  only ;  as  for  costs 
alone  p,  or  damages  in  scire  facias  'i,  or  for  damages 
and  costs  in  a  qui  tarn  action  ^ 

If 

"  2  Bac.  Abr.  229.  and  see  p  Lil.  Ent.233.  1  Str.  188. 

2  Str.  1055.  Cas.  i^m/j.Hardw.  i  2  Str.  808.    2  Ld.  Raym. 

345.  S.C.  1532.  S.C. 

"  2  Bac.  Abr.  228,  9.  «•  4  Bur.  2018. 

Vol.  II.  3  O 


1130  OF   ERROR. 

If  judgment  be  given  against  the  defendant,  and 
he  bring  a  writ  of  error,  upon  which  the  judgment 
is  reversed,  the  judgment  shall  only  be  quod  judi- 
cium reversetur;  for  the  writ  of  error  is  brought 
only  to  be  eased  and  discharged  from  that  judg- 
ment. But  if  judgment  be  given  against  the  plain- 
tiff, and  he  bring  a  writ  of  error,  the  judgment 
shall  not  only  be  reversed,  if  erroneous,  but  the 
court  shall  also  give  such  judgment  as  the  court 
below  should  have  given ;  for  the  writ  of  error  is  to 
revive  the  first  cause  of  action,  and  to  recover  what 
he  ought  to  have  recovered  by  the  first  suit,  where- 
in an  erroneous  judgment  was  given  %  If  judgment 
be  given  for  the  plaintiff  on  one  count  in  a  declara- 
tion, and  a  distinct  judgment  for  the  defendant  on 
another,  and  the  defendant  bring  a  writ  of  error  to 
reverse  the  judgment  on  the  first  count,  the  court 
of  error  cannot  examine  the  legality  of  the  judg- 
ment on  the  second  count,  no  error  being  assigned 
on  that  part  of  the  record  \ 

Where  a  judgment  against  the  plaintiff  is  re- 
versed, on  a  writ  of  error  brought  in  the  King's- 
Bench,  that  court,  having  the  record  before  them, 
may  in  all  cases  give  such  a  judgment  as  the  court 
below  should  have  given,  and  if  necessary,  may 
award  a  writ  of  inquiry  to  assess  the  damages. 

And 


«2    Bac.    Abr.    230.     1     S.  C.  4  Bur.  2156. 
Salk.  262.  401.   4  Mod.  7e.        »  6  T.  R,  200. 


I 


OF   ERROR.  1131 

And  so  where  a  judgment  is  given  against  the 
plaintiff  in  the  King's-Bench,  on  a  special  verdict, 
by  which  the  damages  are  assessed,  the  Exchequer- 
chamber  or  House  of  Lords  may,  in  case  of  rever- 
sal, give  a  new  and  complete  judgment,  for  the 
plaintiff  to  recover  those  damages  ".  But  where  the 
damages  are  not  assessed,  as  when  judgment  is 
given  on  demurrer^  the  Exchequer-chamber  or 
House  of  Lords,  not  having  the  record  before  them,' 
but  only  a  transcript,  cannot  give  a  new  and  com- 
plete judgment,  but  only  an  interlocutory  judg- 
ment quod  recuperet;  and  the  transcript  being  re- 
mitted, the  court  of  King's-bench  will  award  a 
writ  of  inquiry,  and  give  final -j udgment  \ 

When  the  judgment  is  affirmed,  or  writ  of  error 
nonprossed,  the  defendant  in  error  is  entitled  to 
costs  and  damages^  by  the  3  Hen.  VIL  c.  10.  &  19 
Hen.  VII.  c.  20.  By  the  former  of  these  statutes, 
reciting  that  writs  of  error  were  often  brought  for 
delay,  it  is  enacted,  "  that  if  any  defendant  or  te- 
"  nant,  against  whom  judgment  is  given,  or  any 
*'  other  that  shall  be  bound  by  the  said  judgment, 
*'  sue,  before  execution  had^'',  any  writ  of  error  to 
"  reverse  any  such  judgment,  in  delay  of  execu- 

"  tion, 

•1 1  Salk.  403.   1  Ld.  Raym. '  S.  C. 
9,  10.  Carth.  319.   Skin.  514.        w  Cro.  Jac.  6-36.  Gill?.  C.  P. 

S.  C.  275. 

V  Cro.  Jac.    207.   Yelv.  75. 


1132  OF  ERROR. 

"  tion^'that  then,  if  the  same  judgment  be  affirm - 
"  ed,  or  the  writ  of  error  be  discontinued  in  de- 
*'  fault  of  the  party,  or  the  plaintiff  in  error  be  non- 
*'  suited  therein,  the  person  or  persons,  against 
"  whom  the  writ  of  error  is  sued,  shall  recover  his 
*'  costs  and  damages,  for  his  delay  and  wrongful 
*'  vexation  in  the  same,  by  discretion  of  th&Jus- 
*'  tice  "  before  whom  the  writ  of  error  is  sued." 
The  latter  of  the  above  statutes  recites  the  former, 
and  that  it  had  not  been  put  in  force,  and  enacts, 
*'  that  it  shall  be  thenceforth  duly  put  in  execu- 
"  tion."  Upon  these  statutes  it  has  been  holden, 
that  costs  and  damages  are  recoverable  in  error, 
for  the  delay  of  execution,  although  none  were  re- 
coverable in  the  original  action^ :  And  where  anex- 
ecuto?'  brought  error  on  a  judgment,  after  a  devas^ 
tavit^  the  court  held  that  he  ought  to  pay  costs  on 
affirmance  ^ 

On  a  writ  of  error  returnable  in  the  King's - 
Bench,  that  court,  on  motion,  will  order  the  mas- 
ter to  compute  interest  on  the  sum  recovered, 
by  way  of  damages,  from  the  day  of  signing  final 
judgment  below,  down  to  the  time  of  affirmance, 

and 

X  The  woY A  justice y  in  the  659.  5  Co.    101.   S.  C.  Cro. 

singular  number,  is  here  made  Car.  145.    1  Str.   262.    2  Str. 

use  of,  instead  of  the  courts  1084.  but  see  Cro.  Car.  425. 

there  being  no  court  of  error,  1  Lev.  146.    1  Vent,   38.  166. 

consisting  of  only  one  judge.  4  Mod.  245.  Carth.  261.  S.  C. 

Doug.  561.  n.  5.  semb,  contra. 

y  Dyer,  77.  Cro.  Eliz.  617.  ^2  SU'.  977. 


I 


OF   ERROR.  1133 

and  that  the  same  be  added  to  the  costs  taxed  for 
the  plaintiff  in  the  original  action  ^  In  the  Ex- 
chequer-chamber, though  the  court,  it  seems,  are 
bound  to  allow  double  costs  to  the  defendant  in 
error,  on  the  affirmance  of  a  judgment  after  ver- 
dict, of  the  King's-Bench,  yet  it  is  entirely  a  mat- 
ter in  their  discretion,  whether  or  not  interest  shall 
be  allowed  on  such  affirmance '' :  And  accordingly, 
the  course  is  said  to  be  for  the  officer  to  settle  the 
costs,  unless  any  particular  direction  be  given  by 
the  court;  and  in  taxing  them,  he  allows  double 
the  money  out  of  pocket  or  thereabouts,  but  adds 
no  interest  as  a  matter  of  course  ^  In  an  action  on. 
an  attorney's  bill,  if  judgment  for  the  plaintiff  be 
affirmed  in  the  Exchequer-chamber,  that  court  will 
not  allow  interest  '^ :  and  in  debt  on  recognisance, 
against  bail  in  error  in  the  Exchequer-chamber, 
the  bail  are  not  liable  to  pay  interest,  between  the 
time  of  the  original  judgment  and  affirmance; 
though  they  are  liable  for  interest  after  affirmance  ^ 
In  the  court  holden  before  the  Lord  Chancellor 
and  treasurer  and  judges,  (under  the  31  Ecliv.  III.) 
for  examining  erroneous  judgments  in  the  Ex- 
chequer, the  practice  is  to  give  interest,  from  the 

day 

a  Append.  Chap.  XLIII.  §  ^  2  H.  Blac.  284. 

87.  Doug.  752.  n.  3.  and  see  ^  2  Bur.  1096. 

2  Str.  931.    2   Bur.    1096,  7.  '^2  Bo9.  &  Pul.  219. 

1  Blac.  Rep.  267,  8.    S.  C.  2  «  4  Bur.  2127,  2  T.  R.  «8. 
T.  R.  79. 


1134  OF   ERROR. 

day  of  signing  judgment,  to  the  day  of  affirming  it 
there ;  computed  according  to  the  current,  not  ac- 
cording to  the  strictly  legal  rate  of  interest  ^  In 
the  House  of  Lords,  they  give  sometimes  very 
large,  sometimes  very  small  costs,  in  their  discre- 
tion, according  to  the  nature  of  the  case,  and  the 
reasonableness  or  unreasonableness  of  litigating  the 
judgment  of  the  court  below:  And  in  order  to  mi- 
tigate costs,  the  plaintiff  will  sometimes  withdraw 
his  errors. 

By  the  13  Car.  II.  st.  2.  c.  2.  k  10.  if  the  judg- 
ment  be  affirmed  after  verdict^  the  plaintiff  shall 
pay  to  the  defendant  in  error  his  double  costs :  And, 
by  the  8  &  9  TF.  III.  c.  11.  ^  2.  "  if  at  any  time 
"  after  judgment  given  for  the  defendant,  in  any 
"  action,  plaint  or  suit,  in  any  court  of  record,  the 
"  plaintiff  or  demandant  shall  sue  any  writ  or  writs 
^^  of  error,  to  annul  the  said  judgment,  and  the  said 
"  judgment  shall  be  afterwards  affirmed,  the  writ  of 
*'  error  discontinued,  or  the  plaintiff  be  nonsuit 
*'  therein,  the  defendant  in  error  shall  have  judg- 
"  ment  to  recover  his  costs,  against  the  plaintiff  or 
"  demandant,  and  have  execution  for  the  same, 
^'  by  capias  ad  satisfaciendum ,  fieri  facias,  or 
*'  elegit^.^^     But    none  of  the  before-mentioned 

statutes 

f  2  Bur.  1096.  W.  III.  c.  27.  §  3.  2  H.  BISc. 

E  Id.  ibid.  287. 

^  And  see  the  statute  8  &  9 


OF   ERROR.  1135 

statutes  give  costs  in  error,  upon  the  reversal  of  a 
judgment';  and  therefore  when  a  judgment  is  re- 
versed, each  party  must  pay  his  own  costs.  A 
judgment  for  the  plaintiff  was  reversed  on  a  writ 
of  error  in  fact,  brought  by  the  defendant;  and 
the  court  held,  that  the  plaintiff  was  entitled  to  the 
costs  of  the  original  action,  though  not  to  the  costs 
in  error  ^. 


After  affirmance,  or  nonpros  for  not  assigning 
errors,  the  defendant  in  error  having  taxed  his 
costs,  for  which  purpose  he  must  wait  four  days 
exclusive  after  affirmance  in  the  Exchequer- 
chamber,  may  take  out  execution  for  the  sum  re- 
covered in  the  original  action,  as  well  as  the  da- 
mages and  costs  in  error,  or  for  these  alone,  by 
fieri  facias  ^,  against  the  goods  and  chattels  of  the 
plaintiff  in  error ;  by  elegit ,  against  his  goods  and 
a  moiety  of  his  lands ;  or  by  capias  ad  satisfacien- 
dum "\  against  his  person. 

But  where  the  judgment  is  affirmed  in  the  Ex- 
chequer-chamber ",  or  House  of  Lords  °,  to  which 
a  transcript  of  the  record  only  is  removed  by  the 
writ  of  error,  it  is  necessary  that  the  transcript 

should. 

i  1  Str.  617.  §93,  &c. 

^  Per  Cur.   H.   41  G.  III.         '"  Id.  §  99. 
K.  B.  «Palm.    186,  7. 

'  Append.    Chap.  XLIII.        =.  Cowp.  84". 


1136  OF  ERROR. 

should  be  remitted  to  the  court  of  King's-Bench, 
before  the  execution  is  issued,  or  at  least  before 
it  is  returnable  p.  And  where  a  writ  of  error  de- 
termines in  the  Ex  chequer- chamber,  by  abate- 
ment or  discontinuance,  the  judgment  is  not  again 
in  this  court,  till  there  be  a  remittitur  entered;  for 
without  a  remittitur^  it  cannot  appear  to  this  court, 
but  that  the  writ  of  error  is  still  pending  in  the 
Exchequer-chamber  1;  and  therefore  in  such  case, 
it  is  usual  for  the  party  succeeding  in  the  original 
action  to  move  the  court,  on  an  affidavit  of  the  fact, 
for  leave  to  enter  a  rejiiittitur,  and  take  out  execu- 
tion ^  So  if  the  plaintiff  recover  a  judgment  against 
two  defendants  in  this  court,  and  one  of  them  bring 
a  writ  of  error  in  the  Exchequer-chamber,  the 
plaintiff  cannot  charge  the  other  defendant  in  exe- 
cution, till  the  record  be  remitted;  notwithstanding 
the  writ  of  error  might  have  been  quashed  imme- 
diately, because  not  brought  by  both  the  de- 
fendants. 

The  writ  of  execution  being  founded  on  the 
record,  must  issue  out  of  the  court  of  King's- 
Bench,  where  the  record  is  ^;  and  that  as  well 
where  the  judgment  is  affirmed  on  a  writ  of 
error  coram  nobis,  or  from  the  Common-Pleas  or 

an 

p  Append.  Chap.  XLIII.  §  r  1    Salk.   265.    1  Crorap. 

88.92.  369,  70. 

q  1  Salk.  261.    319.    1   Ld.  ^Jnte,9\2. 
Raym.  244.  S.  C. 


II 


OF  ERROR.  1137 

an  inferior  court,  returnable  in  the  King's-Bench  % 
as  where  it  is  affirmed  in  the  Exchequer-chamber", 
or  house  of  Lords  ^'.  This  writ  should  be  directed 
to  the  sheriff  of  the  county  where  the  venue  was 
laid  in  th6  original  action  ;  or  if  it  issue  into  ano- 
ther county,  should  be  made  a  testatum :  and  it 
must  be  returnable  according  to  the  nature  of  the 
former  proceedings ;  if  by  bill,  on  a  day  certain  at 
Westminster,  or  if  by  original,  on  2i  general  return- 
day,  ubicunque,  &c. 

If  judgment  be  reversed,  the  party  shall  be  re- 
stored to  all  that  he  has  lost,  by  occasion  of  the 
judgment'';  and  a  writ  oi restitution  shall  be  award- 
ed ".  Where  the  plaintiff  has  execution,  and  the 
money  is  levied  and  paid,  and  the  judgment  is  af- 
terwards reversed,  there,  because  it  appears  on  the 
record  that  the  money  is  paid,  the  party,  we  have 
seen  ^,  shall  have  restitution,  without  a  scire  facias; 
for  there  is  a  certainty  of  what  was  lost :  otherwise 
where  it  was  levied,  but  not  paid;  for  there  must 
then  h^?i  scire  facias,  suggesting  the  matter  of  fact, 
viz.  the  sum  levied  ^,  &:c. 

If 

t  Cowp.  843.  §  102,  3. 

"  Palm.  186,  7.  y  Ante,  936,  7. 

V  Cowp.  843.  2  2     Salk.     588.     Append, 

w  Cro.  Jac.  698.  Chap.XLIII.  §  100,  101.  Lil. 

^Append.    Chap.  XLIII.     Ent.  641.  650 

Vol.  II.  3  P 


Xl58  OF  ERROR. 

If  a  man  recover  damages,  and  have  execution 
hyjieri  facias,  and  upon  \h&  fieri  facias  the  sheriff 
sell  to  a  stranger  a  term  for  years,  and  after  the  judg- 
ment  is  reversed,  the  party  shall  be  restored  only 
to  the  money  for  which  the  term  was  sold,  and 
not  to  the  term  itself;  because  the  sheriff  has  sold 
it,  by  command  of  the  writ  oi  fieri  facias  ^.  But  if 
a  man  recover  damages  in  a  writ  oi covenant  against 
B,  and  have  an  elegit  of  his  chattels  and  a  moiety 
of  his  lands,  and  the  sheriff  upon  this  writ  deliver 
a  lease  for  years,  of  the  value  of  50/.  to  him  that 
recovered,  per  rationabile  pretium  et  extejitum,  ha- 
bendum as  his  own  term,  in  full  satisfaction  of  50/. 
part  of  the  sum  recovered,  and  after  B.  reverse 
the  judgment,  he  shall  be  restored  to  the  same  term, 
and  not  to  the  value ;  for  though  the  sheriff  might 
have  sold  the  term  upon  this  writ,  yet  here  is  no 
sale  to  a  stranger,  but  a  delivery  of  the  term  to  the 
party  that  recovered,  by  way  of  extent,  without 
any  sale,  and  therefore  the  owner  shall  be  restored  ^. 
And  for  the  same  reason,  if  personal  goods  W'ere 
delivered  to  the  pstrty , per  rationabile pretiu?n  et  ex- 
tentum,  upon  the  reversal  of  the  judgment,  the 
owner  shall  be  restored  to  the  goods  themselves  ^ 

Before 

»  2  Bac.  Abr.  231.  •=  1  Rol.  Abr.  778.    2  Bac. 

fc  Id.  232.  Cro.  Jac,  246.  Abr.  232. 


OF  FALSE-JUDGMENT.  1139 

Before  we  conclude,  it  may  be  proper  to  say 
7i  few  words  of  tht  writ  of  Jaise-Judgment,  on  ac- 
count of  the  affinity  it  bears  to  a  writ  of  error. 

The  writ  of  false -judgment  is  an  original-writ^ 
issuing  out  of  Chancery ;  and  lies  where  an  erro- 
neous judgment  is  given,  in  a  court  not  of  record, 
in  which  the  suitors  are  judges  ^.  This  writ  may  be 
sued  by  any  one  against  whom  judgment  is  given, 
his  heir,  executor  or  administrator ;  or  by  any  one 
who  has  sustained  damage,  though  the  other  de- 
fendants do  not  join,  as  they  ought  to  do  in  er- 
ror ^:  And  if  the  writ  be  brought  upon  a  judgment 
in  the  sheriff's  court,  it  is  in  nature  of  a  rccordari^y 
or  if  upon  a  judgment  in  another  court,  not  of  re- 
cord, it  is  in  nature  of  an  accedas  ad  curiam  ^. 

If  there  be  no  suitors,  by  whom  the  plaint  may 
be  certified,  there  shall  not  be  a  writ  of  false-judg- 
ment ;  as  in  a  copyhold  court,  in  which,  upon  an 
erroneous  proceeding,  the  copyholder  must  sue  to 
the  lord  by  petition ''.  And  by  the  statute  34  Geo. 
III.  c.  58.  "  no  execution  shall  be  stayed  or  de- 
"  layed,  upon  or  by  any  writ  of  false- judgment, 
''  or  supersedeas  thereon,  for  the  reversing  of  any 

" j"dg- 

JF.  N.  B.  18.  §  104. 

«  Moor,  854.  gF.  N.  B.  18. 

'  Append.  Chap.  XLIII.  ^  Id.  ibid. 


1140  OF   FALSE-JUDGMENT. 

*' judgment  in  any  inferior  court,  within  the 
*'  county-palatine  oi  Lancaster,  where  the  debt  or 
''  damages  are  under  ten  pounds,  unless  the  per- 
'•  son  or  persons  in  whose  name  or  names  such  writ 
"  of  false-judgment  shall  be  brought,  with  two 
"  sufficient  sureties,  such  as  the  court  wherein  the 
"  judgment  is  given  shall  allow  of,  shall  first  be 
"  bound  unto  the  party  for  whom  such  judgment 
"  is  given,  by  recognisance  to  be  acknowledged 
'■'■  in  the  same  court,  in  double  the  sum  adjudged 
"to  be  recovered  by  the  former  judgment,  to 
"  prosecute  the  said  writ  of  false -judgment  with 
"eft'ect;  and  also  to  satisfy  and  pay,  (if  the  said 
"  judgment  be  affirmed,  or  the  writ  of  false-judg- 
"  ment  be  not  proceeded  in,)  all  and  singular  the 
"  debt,  damages  and  costs  adjudged,  and  all  costs 
^'  and  damages  to  be  awarded  for  the  delaying  of 
"  execution'." 

A  writ  of  false -judgment  is  made  out  by  the  cur- 
sitor;  and  ought  to  be  served  in  court,  or  if  the 
lord  refuse  to  hold  his  court,  a  distringas  tenere  cu- 
riam goes  against  him  \  And,  except  where  bail  is 
required,  it  is  a  supersedeas  of  execution,  from  the 
time  of  service  ^    The  sheriff  is  not  bound  to  pay 

attention 

iThis  provision   seems  to     1009.  (^).  1075,6. 
have  been  taken  from  the  sta-        ^  6  Hen.  VII.  16.  a. 
tute  19  Geo.  III.  c.  70.  Ante,         i  Id.  15.  b. 


OF  FALSE-JUDGMENT.  1141 

attention  to  this  writ,  without  being  paid  for  the 
return  of  it ". 

Upon  the  return  of  the  writ  ",  when  the  whole 
proceedings  are  certified,  and  not  before,  the  plain- 
tiff shall  assign  hiserrors°:  And  if  the  defendant  have 
day  given  by  the  roll,  the  plaintiff  may  assign  errors^, 
without  3.  scire  Jacias  against  him 'J.  To  compel  a 
joinder  in  error,  the  plaintiff  may  have  a  scii-e facias 
adaudiendum  errores  ■";  or  he  may  serve  a  rule,  as  on 
a  writ  of  error  ^:  And  upon  two  scire  facias* s  ad  au- 
diendum  errores  awarded,  and  nih'ils  returned,  or 
scire  feci  and  default  made,  the  judgment  shall  be 
reversed  ^ 

When  the  parties  are  once  in  court,  the  subse- 
quent proceedings  in  false -judgment  are  the  same 
as  in  error  ":  And  if  a  writ  of  false-judgment  abate, 
or  the  plaintiff  therein  be  nonsuited,  the  defendant 
shall  have  a  scire  facias  quare  executionem  non  ".  On 
a  writ  of  false -judgment,  no  costs  are  in  general  re- 
coverable; and  it  is  therefore  but  seldom  advisable 
to  have  recourse  to  this  remedv. 

'^  Barnes,  199.  p  F.  N.  B.  IS. 

"  Append.     Chap.    XLIII.  i  2  Cromp.  406. 

§  105,6.  rp.  N.  B.  18. 

°  Foi'  the  forms  of  an  as-  ^  2  Cromp.  406. 

signment    of    false-judgment  *  Id.  ibid. 

and     joinder,    see     Append.  "  Id.  ibid. 

Chap.  XLIII.  §  107,8.  V  F.  N.  B.  18. 


INDEX. 


TO    THE 


PRINCIPAL  MATTERS. 


A, 


.BATEMENT,  124.  324. 
of  part  of  a  writ.  583. 

writs  of  error.  1096,  &c. 
pleas  in;  see  tit.  Pleas  and  Pleading. 
time  for  pleading.  418. 
amendments  after.  657. 
judgment  for  want  of  plea  in  due  time.  419.  SOT',  588. 
affidavit  of  truth  of  plea.  507.  588. 
of  cassetur  billa^  vdbreve.  365.  626.  633. 
on  mil  tiel  record.   692. 
entering  proceedings,  after  judgment  of  resfiondeas  ouster. 

669. 
costs  in.  See  tit.  Costs. 

when  the  suit  abates  by  death  of  parties,  and  when  not.  840, 

8cc.  849.  1024,  &c. 
ABIDING  by  Pleas.  See  tit.  Pleas  and  Pleading. 
ACCEDAS  AD  CURIAM, 

what,  and  when  it  lies.  352,  354,  5.  1139. 
form  of.  354,  5. 
see  on  issuing.  97  {v). 
what  the  sheriff  must  do  under  it.  355. 
cannot  be  had  without  shewing  cause.  Id. 
effect  of.  356. 
receipt  and  allowance.  Id. 
VoT..  II.  1  Q  ACCEDAS 


INDEX. 

ACCEDAS  AD  CURIAM, 
return  of; 

when  and  how  made.  Id.  356,  7. 
what  is  good.   357. 
effect  of  filing.  Id. 
declaration; 
denovo.  359. 
rule  for.  Id. 
demand  of.  Id. 
non-firos  for  want  of.  Id. 
appearance; 
rule  for.  Id. 

process  to  compel.  Id.  360, 
subsequent  proceedings.   360. 
ACCORD  and  SATISFACTION, 

when  Dleaded,  or  given  in  evidence.  592.  596.  598,  9 
ACCOUNT, 

action  of;  1,2. 

limitation  of.  15,  16. 
process  in;  105.  122. 
of  outlawry.   126. 
declaration  in.  376. 
judgment  in.   1 129. 
costs  in.  See  tit.  Costs. 
stated,  plea  of.  592. 

bail  in  error,  in  debt  on.  1079. 
AC-ETIAM,  82,  &c. 

unnecessary,  for  less  than  forty  pounds.  82. 
must  specify  the  sum,  when  more.  84. 
necessary,  in  process  against  bail.  84.  995. 
against  several  defendants.  80. 
ACKNOWLEDGMENT,  of  debt.  20.  23,  4.  1143. 
ACQUITTAL,  costs  on.  900,  1.  907. 
ACTIONS, 
criminal.  1. 
civil:  Jd. 

real.  Id.  See  tit.  Real  Actioiia 
personal ; 

upon  contracts:  1. 
account.  1,  2. 
assumpsit;  2,  3,4. 
express.  2. 
implied:  3. 
common.  Id. 
covenant.  4. 
debt.  Id. 

ACTIONS,  m 


INDEX; 

ACTIONS, 

personal ; 

upon  contracts : 
annuity.  4. 

scire  facias.  Id.  See  tit.  Scire  Faciaa 
for  wrongs:  5. 
case,  Id. 

for  torts  to  persons;  Id. 

individually.  Id. 
relatively:  6. 

crim.  con.  Id.  615. 
personal  property.  6. 
real  property;  7. 
corporeal.  Id. 
incorporeal.  Id. 
detinue.  Id. 
replevin.  Id. 
trespass  vi  et  armis.  Id. 
by  whom  brought; 

upon  contracts.  Id. 
for  wrongs.  8. 
election  of.  9. 
joinder  in ; 

of  causes.  10. 

persons.  11.1 143. 
limitation  of.  13,  &c.  1143, 
notice  of.  72,  &c. 
means  of  commencing; 
in  K.  B.  61. 
C.  P.  Id.  (a). 
Exchequer.  62.  (a). 
mixed.  1. 

penal,  ^tetxi.  Penal  mictions. 
trifling.  118,  19.  465,  Sec. 
for  costs.  275,  6.  905. 
upon  awards.  515.  755,  6,  7. 

bail-bonds.  248.  511. 
against  sheriffs,  Sec. 

for  an'escapc,  and  false  return.  207,  8.  255,  6.  790. 
monies  levied;  933. 
taking  excessive  poundage.  981. 
relatingto  the  customs  and  excise,  by  whom  brought.  468. 
concerning  lotteries.  Id. 
consolidating.  See  tit.  Consolidating  .Actions, 
scire  facias  and  error  considered  as  actions.  982,  3.  1065. 

1082. 
-VDDING  Pleas.  See  tit.  Pleas  and  Pleading. 

ADDI. 


INDEX. 

ADDITIONS,  statute  of, 

wuen  it  may  be  pleaded.  582, 
ADJOURNMENT, 
ofessoin.  105.  415. 

execution  of  inquiry.  522. 
day,  in  the  Exchequer-chamber.  1123. 
ADMINISTRATORS,  See  tit.  Executors  and  Administratbrti . 
de  bonis  ?ion; 

scire  facias  by  or  against.  1030,  1. 
ADMIRALTY-COURT,  suits  in.  17. 
ADVOWSON, 

in  gross,  not  extendible  on  elegit.  940. 
AFFIDAVITS, 

of  cause  of  action ; 

in  what  cases  requisite.  144,  5. 
by  whom  made.   154. 
before  whom.  155,  6. 

must  contain   the  plaintiff's  addition,  &c.  154.  1146. 
aliter  of  the  defendant's.  155. 

jurat  of,  when  made  by  two  or  more  deponents.  Jd. 
when  made.  81. 
where.  156. 
how  entitled.  155,  6. 
common.  150.  1 146. 
special.  151. 

jiiust  be  direct  and  positive.  156. 
certain  and  explicit.  158. 
single.  164. 
l)y  an  executor  or  administrator.  157. 
assignee  of  bankrupt.  Id. 
bond.  Id.  158. 
for  stipulated  damages,  &c.  159.  * 

in  trover.  150. 
on  the  lottery -act.  Id.  161. 
by  the  bank-acts ; 

when  made  by  the  plaintiff.  1 16,  2.  1 146. 
an  agent.  163. 
a  partner.  164. 

co-assignee  of  debt.  Id. 
an  administrator.  /(/. 
assignee  of  bankrupt.  Id.  1146, 
need  not  now  be  very  particular.  1 146,  7. 
want  of,  or  defect  in;  165. 

how  cured.  Id. 
court  will  not  go  out  of  it.  Id. 
need  not  be  made  before  an  outlawry.  134. 
being  under  405.  465. 
arising  in  a  particular  county,  &c.  466,  7. 

AFFIDA- 


INDEX. 

AFFIDAVITS, 

of  execution  of  articles  of  clerkship.  37.  40. 
service  under  same.  44. 
payment  of  duty.  Id.  45. 
service  of  declaration  in  ejectment.  443,  4. 
merits,  to  set  aside  regular  judgments.  249.  440.  507,  8. 
the  truth  of  pleas  in  abatement.  587,  8. 
the  due  execution  of  award,  &c.  761. 
service  of  copy  of  rule,  8cc.  Id. 
demand  and  refusal  of  costs.  699. 
increased  costs.  904,  5. 
award  oijieri facias.  930  (c). 
notice,  8cc.  on  the  lords'  act.  966,  7. 
signature  of  note,  on  same.  970. 
on  motions ; 

when  and  how  made.  449,  50. 
title  of.  250.  {x).  450,  1. 
before  whom  sworn.  451. 
jurat  of; 

when  made  by  illiterate  persons.  Id. 

two  or  more  deponents.  Id.  45^. 
supplementary.  444.  450. 
office-copies  of.  454. 
on  shewing  cause;  45  5. 
how  intilled.  450,  1, 
delivering  over.  45  5. 
filing.  /J.  115  6. 
for  admitting  a  plaintiff  to  sue  \n  forma  /lau/ieris.  On. 
an  attachment  against  tlie  sheriff; 

for  not  returning  the  writ.  254. 

bringing  in  the  body.  260. 
•  setting  aside  proceedings,  against  the  sheriff.  263. 

staying  proceedings,  pending  error.  471. 
leave  to  enter  up  judgment,  on  an  old  warrant  of  atlor- 
\  ney.  438,  9.  498,  9. 

inspects  books,  Sec.  542. 
compounding  penal  actions.  501. 
changing  venue.  553. 
pleading  double,  not  necessary.  611. 
judgment  as  in  case  of  a  nonsuit:  706. 

what  if  false.  707. 
putting  off  trial.  708,  9. 

making  submission  to  arbitration  a  rule  of  court.  760. 
attachment,  for  not  perforniing  award.  Id.  761. 
.setting  aside  aM'avd.  7.*^^. 

AFFIDA- 


INDEX. 

AFFIDAVITS, 

for  trials  at  bar.  768. 
new  trials:  821. 

by  jurymen,  not  received.  817. 
additional  day-rules.  962. 

leave  to  issue  a  scire  facias^  upon  an  old  judgment.  439 

(o).  1007. 
rule  to  answer  matters  of.  59. 
AFFIRMANCE-DAY,  in  the  Exchequer-chamber.  1123. 
AFFIRMATION,  see  tit.  Quaker. 
AGENT; 

affidavit  of  debt  by.  163. 

service  of  clerkship  to.  41,  2. 

acting  for  unqualified  persons.  .'54,  5. 

employment  of,  and  how  considered.  55.  1144. 

notices  to.  1144.  1 157. 

delivering  copy  of  bill  to,  against  principal.  275  (o). 

bills  of,  taxable.  281. 

not  necessary  to  be  signed.  Id. 
AGREEMENT, 

delivering  copy  of.  432. 
to  stay  proceedings.  696,  7. 

execution.  505.  1005. 
not  to  bring  a  writ  of  error.  983,  4.  1052. 
AID-PRAYER, 

plea  of,  must  be  verified  by  affidavit.  587  (w). 
AIEL  and  EESAIEL,  damages  on  writs  of.  799. 
ALIAS,  writs  of.  See  tit.  Ca.  sa.  Fieri  facias,  Jury-/irocesSf 

Process,  and  Scire  Jacias. 
ALIEN  BILL,  discharge  of  bail  on.  243. 
enemy,  plea  of.  579. 

not  pleadable  with  non  assuvi/isit.  609  (;;). 
ALLOCATUR.  437,  8.  905. 

ALLOWANCE,  to  prisoners  on  the  lords' act.  969,  70. 
of  writs  of  certiorari  and  habeas  cor/ius,  337. 
fwne  and  rccordari,  8cc.  356. 
writ  of  error.  1070. 
AMBASSADORS.  167,  8. 
AMENDMENTS,  439.  442. 

at  common  law;  651,  2.  658,  9.  685.  ^ 

whilst  proceedings  are  in  paper.  652.  658,  &c.  ''i 

in  penal  actions.  659,  60.  I'V 

of  declarations;  391.  652,  3,4.  i^ 

in  the  title.  329.  368,  9.  -.; 

venue.  545.  652.  («).  / 

before  plea.  654. 

AMEND- 


INDEX. 

AMENDMENTS, 

at  common  law ; 
of  declarations: 
after  plea;  654. 

in  abatement.  652. 
of  nut  del  record.  LI. 
second  term.  653. 
verdict.  652,  3. 
against  a  prisoner.  652.  (y). 
in  penal  actions.  659,  60. 
by  adding  a  eount.  653. 

alleging  new  right  of  action.  /(/. 
costs,  8cc.  654. 
time  to  plead  after.  426.  654. 
rule  to  plead.  431,  2.  654. 
of  notice  to  declaration  in  ejectment.  444,  5. 
rules  of  court.  461. 

particulars  of  demand,  or  set-oft".  536,  7. 
pleas,  replications.  Sec.  4  39.  442.  654,  5. 
replication  to  sham  plea,  without  costs.  657  {t). 
by  withdrawing  replication,  and  replying  de  novo.  65S- 
after  demurrer  or  joinder.  656. 
argument.  Id.  657. 
opinion  of  court  given.  656  (.9). 
by  withdrawing  demurrer,  and.  pleading  or  replying  de 

novo.  657,  8, 
by  statute;  651. 

when  proceedings  are  entered  on  record.  660.  685. 
statutes  of,  what:  660,  1. 
do  not  extend  to  criminal  case s,^or  penal  actions.  661. 

839,  40. 
require  something  to  amend  by.  661. 
after  nonsuit,  for  defect  in  bill  of  particulars.  537  (c). 
error;  662. 

when,  where,  and  how  made.  Id.  663,  4. 
of  proceedings  in  inferior  courts.  664. 
costs  on.  Id. 
«f  original  writ.  104.  661. 

mesne  process;  83.  91.  125.  402.  660. 
when  not  allowed:  402  (z). 

in  inferior  courts.  66 1 . 
bill;  Id. 

against  an  attorney.  274.  295. 
mcmoraudun:.  Id. 
declaration  and  pleadings.   Vide  suf>ra, 
writ  of  inquiry.  513,  14. 

AMEND- 


INDEX. 

AMENDMENTS, 

of  nisi  firius  roll  .661. 
jury-process.  836,  Sec. 
postea.  661,  2.  802.  811,  12. 
special  verdict.  661,2.807. 

case.  810. 
judgment.  662.  858.  862,  3. 
execution.  486.  662.  956.  1028. 
docket,  or  list  o^  committiturs.  322. 
scire  facias.  1036,  7. 
writs  of  error.  1093,  &c. 
certiorai'i.  1111. 
not  actually  made,  on  the  16  8c  17  Car.  II.  c  8.  840. 
AMERCEMENT, 

of  sheriff,  for  not  bringing  in  the  body.  256. 

disused,  and  why-  Jd. 
firofalso  clamore.  796.  890. 
AMOVE  AS  M.A^NUS.  143. 
ANCESTOR  and  HEIR.  See  tit.  Heir. 
ANCIENT-DEMESNE.  357.  573. 
ANNUITY, 
action  of;  4. 

not  within  the  statute  of  limitations.  16. 
process  in.  105. 
declaration  in.  376. 
judgment  in.  842.  101 1. 

saVf-yaaas  for  subsequent  arrears,  1000.  1010,  II 
motion  to  set  aside  ;  445.  983. 
by  whom  made.  446,  7. 
after  what  time.  448. 

when  the  court  will  order  the  deeds,  Sec.  to  be  cancelled. 

447.  491. 
in  what  cases  they  will  not  interfere.  447,  8,  9. 
objections  must  be  stated  in  the  rule  nisi.  449. 
bond,  staying  proceedings  on.  485,  6. 
pleadings  in  action  on.  638,  9. 

within  the  Stat.  8  Sc  9  W.  III.  c.  11.  §  8.  511.  1012. 
motion  for  leave  to  take  out  execution.   1011. 
scire  facias,  when  necessary  for  subsequent  arrears.  Id- 
APPEAL.  268. 
APPEARANCE, 

in  person.  35.  62,  3. 
by  attorney.  Id.  105.  139,  40.  213,  14. 
prochein  amy.  69.' 
guardian.  70. 

APPEAR 


INDEX, 

APPEARANCE, 

of  the  defendant; 
what.  210. 

different  from  bail.  Id. 
voluntary  or  compulsive.  Id. 
by  original;  100.  105,  6. 

with  whom,  and  when  entered.  210,  11 
upon  the  cafiias,  &c.  213. 
common  or  special.  211.  1 1 50. 
to  reverse  an  outlawry.  139,  40. 
on  a  removal  hy  fione  or  rccordari,  &c.  359. 
in  scire  facias.  See  tit.  Scire  Facias. 
APPEARANCE-DAY.  101. 
APPOINTMENT,  by  the  Master, 

to  tax  costs,  on  a  rule  to  bring  money  into  court.  569- 
discontinue.  629. 
nominate  a  special  jury.  72. 
attendance  on.  57.  286. 
ARBITRATION, 
what.  743  (c). 
submission  to; 

where  a  cause  is  depending:  743. 

by  rule  of  court'  Id.  744,  5.  757.  759,  60- 
order  o{  nisi  firius.  743. 
where  no  cause  is  depending:  743,  4. 
by  agreement  of  parties;  Id. 
in  writing.  744. 
by  parol.  Id.  746. 
what  submissions  are  within  the  stat.  9  Sc  10  W.  TIL 
intent  of  that  act.  745.  c.  15.746,7. 

Upon  inclosure  acts.  744. 
in  what  manner,  and  by  whom  made.  747. 
how  far  a  stay  of  proceedings.  748. 
effect  of  agreement  to  refer.  Id. 
when  and  how  determined,  or  revoked.  Id.  749. 
consequences  of  revoking.  749. 
swearing  witnesses,  appointment,  8cc.  Id.  750. 
chusing  umpire.  730. 

enlarging  time  for  making  award  :  442.  750,  1. 
motion  and  rule  for,  when  and  how  made.  442.  751 
privilege  from  arrest,  during  attendance  on.  175  (a), 
award  ;  751. 

by  whom  made,  on  a  reference  to  several.  750. 
general  requisites  of :  75  1. 
certainty.  Id. 
Vol.  II.  3  R  ARBI- 


INDEX. 

ARBITRATION, 

award; 

when  final.  751,  2. 

good  in  part,  and  bad  in  part.  751. 

enforcing; 

by  action:  755,  6, 

where  the  award  is  not  made  within  the  limited 

time.  756, 
venue  cannot  be  changed  in.  545  (a), 
by  attachment:  757. 

in  what  cases  granted.  757,  8. 
for  costs  of  reference.  757. 
after  a  foreign  attachment  in  London.  759 
against  peers,  Sec.  757. 
bankrupts.  758. 
'  feme-coverts.  Id. 

executors  and  administrators.  758,  9. 
on  copy  of  award.  757. 

making  submission  a  rule  of  court:  445. 75 1 .  75&» 

60. 
affidavit  for.  760. 
demand  of  money,  &c.  Id. 

by  whom  and  how  made.  Id. 
service  of  copy  of  rule,  and  award.  Sec.  Id.  1 159. 
motion  and  rule  for,  when  and  how  made.  438, 

760,  1. 
affidavit  in  support  of.  76 1 . 
quaker's  affirmation.  Id. 
''vhat  may  be  shewn  for  cause  against  attachment, 

and   why:    764,   5  = 
illegality  of  award.  Id. 
by  signing  judgment,  and  taking  out  execution.  755. 

762.910.  1159.  1162. 
setting  aside;  76 S. 
by  what  means.  Id. 
grounds  of:  Id. 

for  an  improper  stamp.  7^3, 
on  an  inclosure  act.  Id. 
motion  for,  and  when  and  by  whom  made:  442.  452, 

762,  &c.  1159, 
affidavit  on.  762. 
costs  of  reference;  752,  Sec. 

where  the  submission  is  silent  respecting  them.  752. 
they  are  to  abide  the  event  of  award.  Id.  753. 
in  the  discretion  of  ar^jitrator.  753, 4. 
taxing.  754,  5, 

ARBI- 


INDEX 

.ARBITRATION, 

award; 

pleadings  on.  592.638. 

bail  in  error,  in  debt  on  bond  for  performance  of.  1077 
ARGUMENT,  of  demurrers.  See  tit.  Demurrers. 

writs  of  error.   1125,  6 , 
ARRAY,  challenging.  See  tit.  Jur-y. 
ARREST, 

at  common  law.  122. 

by  statute.  Id. 

previous  to,  and  on  the  statute  12  Geo.  I.  c.  29.  144 

cases  provided  for  by  the  above  statute.  146. 
changes  it  has  undergone.  Jd. 
in  Wales.   150. 

counties  palat'me.  Id. 
when  allowed  of  course.  Id, 
in  trover.  Id.  151. 

when  not  allowed,  without  special  order.  151, 
in  debs  on  statute.  152. 

judgment.  153,  186,  Sec.  1148. 
recognisance  of  bail.  152.  995, 
bail  or  replevin  bond.   153. 
upon  an  award.  187. 
for  what  sum ; 

in  debt  on  bond,  for  payment  of  money.  153. 

performance  of  covenants,  &g.  Id. 

154. 
where  there  have  been  mutual  dealings.-   154. 
for  more  than  the  sum  due,  consequences  of.  1 156.  1161 
affidavit  in  support  of.  See  tit.  Affidavits. 
privileges  from; 

of  the  Royal  Family.  167. 

servants  of  the  King's  household.  Id. 
ambassadors,  and  their  domestic  servants.  Id.  168,9 
peers  and  peeresses,  and  their  servants.  169,  70. 
members  of  the  House  of  Commons.   170,  1. 

convocation,  and  their  servants.  171 
corpoi'ations  aggregate.  Id. 
hundredors.  Id. 

attornies  and  officers  of  the  court.  Id. 
executors  and  administrators.   172. 
married  women.  173. 

parties  to  the  suit,  and  their  witnesses.  174.  188,' 
seamen.  175,  6. 
soldiers.   177,  8,  ARREST, 


INDEX, 

ARREST, 

privileges  from; 

of  bankrupts.   179,  8cc. 

insolvent  debtors,  and  fugitives.  182,  3. 
how  taken  advantage  of.   183. 
of  insane  persons.  183,  4. 
not  allowed  twice,  for  the  same  cause.  184.   186.1147.. 

exceptions  to  this  rule.  Id.  185. 
abroad.  Id.  184,  5. 
after  a  nc)72/2ro*.  185. 

discontinuance.  Id.  186. 
siifiersedtas.  186. 
in  what  places:  188, 

of  clergymen.   Id.  ^ 

of  the  king's  debtor,  &c.  189.  ; 

at  what  time.  189,  &c.  -g 

how  made.  93.  ■■{, 

by  whom.  19),  2. 
when.  193. 
where:  192.  ' 

within  a  liberty.  Id. 
by  what  authority.  191,  2,  3. 
consequences  of.  194. 
upon  the  cjcigi  facias.  130. 

cu/iias  utlagatum.  131,  2. 
proceedings  on,  under  stat.  43  G.  IIL  c.  46.  §  2.  1 148,  9, 

50. 
ARREST  of  JUDGMENT, 

ground  and  mode  of  taking  advantage  of.  824,  5. 
motion  in,  when  and  how  made.  840. 

not  allowed,  after  judgment  on  demurrer.  825. 

nor  for  any  thing  that  is  aided  or  amendable.  826. 
in  an  action  for  words.  831  (t^). 
costs  on.  See  tit.  Costs. 
limitation  of  actions  after.  15,  16. 
yVRTICLES  of  Clerkship.  See  tit.  Attornies. 
ASPORTAVIT,  costs  on.  881,  2. 
ASSAULT  and  BATTERY, 
actions  for;  7. 
limitation  of.  15. 
declaration  in.  393. 
costs  in.  vSee  tit.  Costs. 
ASSETS  infuturo.  See  tit.  Executors  and  Administrators. 
ASSIGNEE  of  debt. 

affidavit  of  debt  by.  157,  8. 
ASSIGNMENT  of  errors.  See  tit. -Error. 

ASSIZE, 


INDEX 

ASSIZE, damages  in.  799. 
ASSUMPSIT, 

actions  of;  2,  3,  4.  9,  10.  96. 
upon  promises,  express.  2. 
implied:  3,  4. 

common  assumfiaits.  3. 
limitation  of.  15.  18,  &c. 
arrest  in.  I5l. 
declaration  in.  378,  &c. 

staying  proceedings  in,  on  paymentof  debt  and  costs.  482. 
assessing  damages  in,  without  a  writ  of  inquiry.  514,  15, 

16. 
particulars  of  demand  in.  534,  5. 
bringing  money  into  court  in.  562,  3. 
pleas  in.  591,  2,  3. 
judgment  in.  842. 
damages  in ; 

how  ascertained.  842  (n). 
when  some  defendants  are  acquitted.  803. 
costs  in.  See  tit.  Costs. 
execution  in.  911. 

contribution  after  recovery  in.  805  (v). 
ASSURANCE.  See  tit.  Po^Ci/  of  Insurance. 
ATTACHIVIENT, 

of  privilege.  24,  5.  28.  61,  62  (a).  264.  271. 
of  goods; 

in  trespass.  78. 
by  original.  106. 
of  the  person; 
against  peers,  8cc. 
when  it  lies.  738. 
when  not.  170,  1.  757. 
against  gaolers,  Sccon  the  lords' act.  207. 
sheriffs,  &c. 

for  not  returning  the  writ.  254.  261,  2.  437. 
bringing  in  the  body;  260,  I,  &;c.  437. 
orij^in  of.  256. 
non-payment  of  money.  138. 
to  whom  directed.  261. 

may  be  moved  for  the  last  day  of  term.  262.  452. 
proceedings  thereon.  262,  3. 
against  attornies; 

for  not  performing  undertakings.  58.  199.  200.  213. 

437. 
delivering  up  deeds.  57,  8. 

ATTACH- 


INDEX. 

ATTACHMENT, 

of  the  person; 
against  atttornies; 
for  practising  in  another's  name,  without  his  consent 

55. 
general  misbehaviour.  59.  437. 
proceedings  thereon.  59, 
against  the  parties  to  the  suit; 

on  a  subfixna,  in  the  Exchequer;  62  (c)^ 

with  a  clause  of  proclamation.  Id. 
for  non-payment  of  costs : 

when  it  lies.  438.  457.  905,  6. 
when  not.  488.  569.  629. 
absolute  in  the  first  instance.  438.  906. 
may  be  moved  for  the  last  day  of  term.  452.  906. 
for  non-payment  of  composition-money,  in  a  penal  ac- 
tion. 502. 
not  peforming  an  award.  See  tit.  Arbitration. 
against  other  persons; 

for  speaking  contemptuous  words  of  the  court,  or  its 

process.  149.  437, 
a  rescue:  209.  437. 

how  returnable.  209.  261,  2. 
'  disobedience  to  a  subjixna^  or  other  process.  86.  S37J 

356.  437.738,  9. 
motions  and  affidavits  for,  how  entitled.  450. 
when  it  may  be  executed  on  a  Sunday.  191.  438. 
for  contempt,  not  bailable.  59.  196. 
out  of  Chancery,  bail  on:  196  (d). 
on  mesne  process.  Id. 
after  a  decree.  Id. 
prisoner  in  custody  on,  how  charged.  306, 
ATTAINDER, 

of  treason  or  felony,  plea  of.  579. 
ATTAINT, 

writ  of;  815. 

when  it  lies.  516,  17. 
ATTORNIES, 
what.  34. 

admission  of:  35.  46. 
previous  qualifications; 
articlesof  clerkship.  36. 
affidavit  of  execution.  37,  S . 
stamp-duty  on.  39. 
restrictions.  40,  Iv 

ATTORv 


INDEX. 

ATTORNIES, 
admission  of: 
previous  qualifications; 
service ; 

in  general.  41,  2. 
to  an  agent.  42. 
in  case  of  death,  Sec.  Id.  43. 
notice  of  application  to  be  admitted.  4S,  4. 
affidavit  of  service.  44. 

payment  of  duty.  Id.  45. 
examination.  35.  46. 
oath  or  affirmation.  45. 
inrolment.  46. 

entry  of  name  and  place  of  abode.  47. 
certificate  of  admission  and  inrolment.  49.  51,  2. 
may  be  admitted  of  different  courts.  52. 

practise  in  the  names  of  other  attornies.  Id.  53. 
not  to  suffer  unqualified  persons  to  vise  their  names.  53, 4, 5. 
and  agents,  their  relation  considered.  55. 
privileges  of; 

to  sue  by  attachment  of  privilege.  28.  864,  5. 

be  sued  by  bill.  Id. 
not  to  be  arrested:  171,  2,265. 

remedy  thereon.  Id. 
not  to  pay  for  copies  of  the  pleadings.  678,  9. 

issue-money.  679. 
•with  regard  to  the  venue.  264.  550. 
trials  at  bar.  265.768. 
offices.  265,  6. 
when  not  allowed.  266. 
as  against  each  other.  Id.  267. 
waiver  of.  267,  8. 
mode  of  proceeding  by  attachment  of  privilege;  61,  62  (a). 

what.  271. 

how  sued  out.  Id.  272. 
arrest  thereon.  272. 
time  for  d»claring.  273. 
pleading.  Id. 
by  bill;  25.  61,  2  (a). 

what.  273. 
its  commencement.  376. 
conclusion.  273.  401. 

ATTOR' 


INDEX. 

ATTORNIES, 

mode  of  proceeding  by  bill ; 

when  and  how  filed:  273,  4. 

in  vacation.  Id. 
amendment  of.  274. 
copy  of; 

when  delivered.  275. 
to  whom.  Id. 

sticking  up  in  the  office.  Id. 
time  for  pleading.  274,  5. 
by  cafiias  of  privilege,  in  the  Exche-r 
quer.  62  (a). 
plea  of  privilege  by.  46,  7.  172  (A).  579. 
disabihties  and  restrictions  of: 

cannot  be  bail,  or  lessee  in  ejectment,  &c.  230.  269. 
a  justice  of  the  peace.  269. 
commissioner  of  the  land-tax.  Id. 
incapable  of  prosecuting  actions,  when  in  prison.  Id. 

270. 
appearance  by;  35.  62,  3,  4. 

without  warrant.  64.  470. 
withdrawing  themselves.  64. 
cannot  be  changed,  without  leave.  Id.  983.  1094. 
dying.  65. 

warrant  of.  See  tit.  Warrant  of  Attorney. 
affidavit  sworn  before.  451. 

when  necessary  to  be  present,  on  executing  warrant  of 

attorney.  492,  &c. 
undertaking  to  appear ; 

in  bailable  actions.  199,200. 
on  common  process.  213. 
to  reverse  an  outlawry.   1 34. 
duties  of;   55. 

to  appear  in  court.  57. 

attend  on  motions,  &c.  Id. 
compellable  to  deliver  up  deeds,  &c.  on  payment  of  costs. 

57,  8 
consequences  of  misconduct  of; 

action  for  damages.  56.  861. 
payment  of  costs.  58. 
attachment.  58,  9.  437. 
striking  off  the  roll.  60. 
may  be  struck  off  the  roll,  at  their  own  instance.  Id. 
re-admitted.  Id. 

ATTOR- 


i 


INDEX. 

ATTORNIES, 

costs  of; 

action  for.  275. 
delivering  bill  of:  276. 
how  far  conclusive.  285. 
in  what  cases  it  may  be  taxed.  291,  2. 
at  what  time.  283,  4. 
mode  of  taxing  it.  285,  6. 
costs  of  taxation.  286. 
evidence  of.  Id. 
lien  for  the  balance.  287,  8. 
payable  by  attorney,  for  neglect.  58. 
interest  on  bill  of,  not  allowed  in  error.  11 33. 
clerks  of;  35,  &c. 

using  name  of  regular  attorney,  without  his  consent.  5^i. 
not  allowed  to  be  bail;  230. 

except  for  rendering.  231  (y). 
affidavits  sworn  before.  451. 
ATTORNMENT.  618.  827. 
AVERMENT;  See  tit.  Declaration. 

writ  of.  107. 
AUDITA-QUERELA; 

remedy  by.  984.  1029.  1043.  1048 
pleas  in.  622. 

issues  and  demurrers.  666. 
AUTER-ACTION  Pendent,  plea  of.  583. 
AWARD;  See  tit.  Arbitration. 

pleaded,  after  the  last  continuance.  775 

B. 

BAIL, 

to  the  sheriff;  194. 

on  an  attachment  out  of  chancery:  196  (tT). 
on  mesne  process.  Id. 
after  a  decree.  Id. 
cannot  be  taken,  on  an  attachment  for  contempt.  59, 

196.. 
indictment  for  misdemeanor. 
195,  6. 
how  far  liable.  250. 
execution  against.  Id. 
when  and  how  discharged; 
by  death.  251. 
Vol.  II.  S  S  BAH., 


INDEX. 

BAIL, 

to  the  sheriff; 

when  and  how  discharged; 
by  bankruptcy.  Id. 
render.  236.  251,2. 
to  the  action;  194. 

common  or  special.  Id. 
history  of.  211. 
governed  by  the  arrest.  212. 

necessary  to  be  filed,  for  supporting  the  proceedings. 

211.  291, 
common;  151.  165.  186,  211.  291.  324,  5,  6. 
when  and  how  filed,  by  the  defendant.  212. 
by  the  defendant's  attorney.  213. 
by  the  plaintiff,  according  to  the  statute:  214. 
will  not  entitle  a  third  person  to  declare  by  the 

bye.  36G. 
under  Stat.  43  G.  III.  c.  46.  §  2.  1150. 
nunc  pro  tunc.  214. 
filing  it,  formerly.  215. 
penalty  for  not  filing  it.  212  (/?). 
motion  for  discharging  defendant  on.  440, 
special;  149,  50.  216.  328. 
by  whom  put  in.  216,  17. 
when;  217. 

before  or  after  return  of  writ.  Id. 
in  what  court,  on^a  removal  before  declaration.  300  (r^. 
before  whom.  217. 
how,  on  a  misnomer.  582  (z). 
recognisance  of.  See  tit.  Recognisance. 
before  a  commissioner.  220. 
absolute  or  de  bene  esse.  221. 

origin  of.  de  bene  esse.  Id.  (y). 
notice  of;  222. 

unnecessary  in  the  common  pleas.  223  (Aj 
after  the  bail-bond  is  forfeited.  249. 
exception  to;  223,  4. 

when  necessary,  to  fix  tlie  sheriff.  257,  8 
notice  of  exception.  224.  257. 
time  allowed  to  add  and  justify.  224,  5. 
further  time.  231,  2. 
adding.  224,  5.  257,  8. 
novice  of  justification;  225,  6. 

affidavit  of  service  of.  228. 
justifying;  226,  &c.  440. 
at  what  hour.  22*3. 

BAIL, 


INDEX, 

BAIL, 

special ; 
justifying; 

in  person,  or  by  affidavit.  226. 
where  the  same  persons  are  bail  in  several  actions. 

227  (w). 
need  not  justify,  to  render.  235,  6. 
grounds  of  opposing.  228,  &c. 
assuming  feigned  names.  228. 
personating  others.  229. 
rule  of  allowance.  232. 
where  the  defendant  is  a  prisoner:  233. 

in  vacation.  233. 
upon  a  certiorari  or  habeas  corfius:  342. 

when  and  how  put  in,  excepted  to,  and  justified. 

343,  Sec. 
upon  an  attachment  of  privilege.  272. 
exigi  facias.  130,  1. 
capias  utlagatuvi.  132,  3. 
reversing  an  outlawry.  140,  1. 
how  far  liable ; 

upon  a  cefii  corfius.  220.  225.  233,  See. 
habeas  corfms.  345,  6. 
may  take  their  principal  at  anytime.  180.  190,  1. 
privileged  from  arrest,  eundo,  8cc.  174. 
when  and  how  discharged; 

by  declaring  for  a  different  cause  of  action,  or  in  a  dif- 
ferent county.  242,  3.  992,  3. 
by  render:  225. 

at  what  time  it  may  be  made;  235,  £cc.  995.  1045. 
before  judgment:  235. 

without  justifying.  Id.  236. 

as  between  plaintiff  and  sheriff.  Id. 

sheriff's  bail.  236. 
after  judgment.  236,  8cc. 
in  what  cases  it  may  be  pleaded.  238.  1044. 
notice  of;  240,  1. 

affidavit  of  service.  Id. 
when  not  given  in  time.  241. 
entry  in  the  marshal's  book:  242. 

oiexonrretur  on  the  bail-piece.  241,  3,  4. 
by  death  or  bankruptcy  of  the    defendant,  &c.  243. 

1044,  5. 
reference  to  arbitration.  993. 
on  removing  a  cause  from  an  inferior  court.  336. 

BAIL, 


INDEX. 

BAIL, 

special ; 
-'proceedings  against; 

by  action  of  debt.  471.  995,  6. 

scire  facias.  Jcl.  and  see  tit.  Scire  Facias. 
staying,  pending  error.  471,  &:c.  474,  5. 
execution  against,  in  scire  facias.  1049,  50. 
error  by.  1053. 

certiorari  for,  how  directed.  11 10  (u). 
in  error ; 

in  what  cases  required : 
at  common  law.  1074. 
by  statute; 

after  judgment  by  default,  &c.  1075,  Sec- 
verdict:  1080. 

in  dower  and  ejectment.  1081. 
against  executors  and  administrators.  IG82. 
on  a  writ  of  error  coram  nobis.  1083. 
Avhen,  where,  and  how  put  in.  1084,  5. 
recognisance  of.  See  tit.  Recognisance. 
cannot    render,  nor   are    discharged  by   bankruptcy. 

1086,7, 
nor  by  taking  principal  in  execution.  1087  (o). 
notice  of.  1087. 

exception  to,  and  rule  for  better  bail.  Id. 
adding  and  justifying:  Id. 

notice  of.  1088  (w), 
consequence  of  not  puting  in  and  perfecting.  1087,-^, 
proceedings  against ; 

by  action  of  debt.  998. 

scire  facias.  Id.  and  see  tit.  Scire  facias.. 
not  liable  for  interest,  on  affirmance.  1 133. 
BAIL-BOND, 
form  of.  197. 

on  a  misnomer  in  process.  582  (i). 

v/hen  good,  though  the  condition  vary  from  the  ^vrit.  19.8. 
void,  consequence  of.  253. 
assignment  of; 

in  what  cases  taken,  and  in  what  not.  245.  251. 
at  what  time  it  may  be  taken.  247. 
by  whom  made.  248. 
action  on,  must  be  brought  in  the  same  court.  Id, 

not  within  the  stat.  8  &  9  JV.  III.  c.  1 1.  §  8.  5  U. 
setting  aside  proceedings  on,  for  irregularity.  248  9  . 
motion  for  delivering  it  up  to  be  cancelled.  440. 
staying  proceedings  on  terms.  249.  440,  1.  483. 

BAIL- 


INDEX. 

BAIL-BOND, 

staying  proceedings  on  terms; 
motion  for.  441  («). 

rule  or  summons,  how  entitled.  249,  50  (xy. 
upon  a  capias  utlagatum.  133. 
pleadings  in  actions  on,  196,  7,  8.  596. 
BAILIFFS,  33,  4. 
in  fee.  191. 
special.  Id.  192.  253. 
of  a  liberty:  33.  192.  204. 

punishable  for  misbehaviour.  33,  4. 
proceedings  against,  for  a  false  return.  257. 

to  compel  bringing  in  the  body .  Jrf. 
BAILMENT.  4. 
BAIL-PIECE, 

common.  213.  215.  326. 
special:  219,  20,  21. 

when  transmitted.  221. 

filed,  upon  an  acceptance  of  the  bail.  223. 
for  want  of  an  exception.  224. 
after  justification.  232. 
on  a  habeas  cor/ius.  343,  4. 
exoneretur  on.  240,  1,  &c. 
BALLOTING-ACT.  722,  &c.  781,  2. 
BANK-ACTS, 

affidavit  required  by.  161,  8cc. 
BANK-NOTES,  cannot  be  taken  in  execution.  917. 

books  of,  inspecting,  539, 
BANKRUPT, 

actions  by  assignees  of.  8.  12,  13.  376. 
affidavit  of  debt  by  assignee  of.  157.  164. 
privilege  from  arrest  of; 

in  coming  to  surrender.  Sec.  179,  80. 
before  or  after  certificate.  180,  1,  2. 
future  effects  of,  how  far  liable.  1013,  14. 
jincertificated,  cannot  be  bail.  229. 

not  required  to  give  security  for  costs.  477  (/). 
bail  of,  how  discharged,  240.  243.  1044. 
time  enlarged  for  rendering.  237  (m). 
set-off  in  actions  by  or  against  assignees  of.  605,  6. 
liable  to  costs,  for  false  pleading.  182. 
not  liable  to  attachment,  for  not  performing  award.  758. 
in  what  cases  the  assignees  may  proceed  to  judgment  and 
execution  in  bankrupt's  name.  849.  1023,  4. 

BANK- 


INDEX. 

BANKRUPT, 

judgments  against,  how  affected  by  bankruptcy.  852,  o. 

executions  against.  922   3.  1014,  15. 

scire  facias  by,  as  executor  or  administrator.  1030. 

for  assignees  of,  when  necessary.  1023,  4. 
BANKRUPTCY, 
commission  of; 

privilege  of  witnesses,  &c.  from  arrest  on.  175  (a). 
against  a  defendant  in  execution; 
efTect  of.  957. 
plea  of,  in  deftndant; 

need  not  be  signed  or  filed,  in  K.  B.  621,  2. 
must  be  signed  in  C.  P.  622.  (/i). 
in  one  of  several  defendants.  632. 

plaintiff,  after  the  last  continuance.  775. 
may  be  pleaded  in  trover.  598, 
of  principal,  cannot  be  pleaded  by  bail.  1044  (e). 
before  affirmance,  no  discharge  of  bail  in  error.  1086,  7. 
in  what  cases  an  abatement  of  a  writ  of  error.  1098,  9. 
BAR.  Pleas  in.  See  tit.  Pleas  and  Pleading. 
trials  at.  See  tit.  Trials. 
substantially  bad,  not  cured  by  verdict.  828. 
BARC;N  :  nd  FEME, 

actions  by  or  against;  9. 

limitation  of.  16. 
affidavit  of  debt  by  feme-eovert.  154.  158. 
arrest  of,  upon  mesne  process.  173. 

process  of  execution.  174. 
service  of  process  on.  149. 

Avarrant  of  attorney  by  or  to  a  feme-covert.  492.  496,  7.    ' 
set  off  in  actions  by  or  against.  605. 
whether  liable  to  attachment,  for  not  performing  an  award. 

758. 
when  the  wife's  goods  may  be  taken,  on  an  execution 

against  the  husband.  923,  4, 
scire  facias  hy  or  against.  1021,  &c.  1030. 
exTor  by.  1052,3.  1056.  1107. 

marriage  of  feme,  in  what  cases  an  abatement  of  a  writ  of 

error.  1099. 
BENEFICED  CLERK.  See  tit.  Clergymen. 
BER  WICK-upon-Tweed ; 

dirc;ction  of  process  into.  86. 
changing  venue.  552. 
award  o{  venire  facias.  674. 
trial.  771,  2. 

BILL, 


INDEX. 

BILL, 

jurisdiction  of  court  by.  28. 

against  attornies.  Sec.  25.  61,  2.  11.  264,  5.  2/3. 

members  of  the  house  of  commons.  25.  61,  2,  11. 

110. 113,  14. 
unprivileged  persons.  1 1 1  {b). 
prisoners,  in  the  actual  or  supposed  custody  of  the 
marshal.  28,9.  61.  290. 
in  the  Fleet.  62  (a). 
when  actually  filed,  and  when  not.  291,  2. 
how  far  considered  as  the  commencement  of  the 

suit.  292. 
against  prisoners,  in  the  actual  custody  of  the  marshal.  25. 

61.  77.303. 
amendments  of,  or  by.  294,  5.390,  1.  661. 
want  of,  aided  by  verdict.  832.  1113. 

error,  after  judgment  by  default,  &c.  Id. 
how  assigned.  1 108. 
certiorari  for ;  1109,  10. 

proceedings  thereon.  1111. 
BILL  of  Costs.  See  tit.  Costs  and  Jttornies. 
J\liddlesex .  See  tit.  Process. 
Particulars.  See  tit.  Particulars. 
BILLS  of  Exceptions, 

what,  and  how  they  arise.  785,  &c. 

grounds  of.  786,  7. 

in  what  cases  allowable,  and  in  what  not.  Id,  788.  791. 

must  be  tendered  at  trial.  788. 

forms  of.  788,9,  90. 

sealing.  790. 

proceedings  on: 

writ  of  error.  790,  1, 

to  confess  or  deny  seal.  79  I 
judgment.  Id. 
BILLS  of  Exchange  and  Promissory  Notes; 
affidavitof  debt  on.  157. 
staying  proceedings  on.  482. 

assessing  damages  on,  without  a  writ  of  inquiry.  514,  &c. 
evidence  of,  on  execution  of  inquiry.  523. 
delivering  copies  of.  532. 
venue  cannot  be  changed,  in  actions  on.  547. 
cannot  be  se*^  off.  if  indorsed  after  bankruptcy.  606. 
notice  ot  indorsement  of.  38'J. 

demand  and  refusal  by  acceptor,  must  be  laid  ir.  action 

against  indorser.  827. 
notice  to  produce  in  trover.  736. 

BLACK- 


INDEX. 

BLACK-ACT.  116,  17.  119. 
BLANK-WRITS; 

not  to  be  sealed.  33  (t). 
BO ARD  of  Greencloth.  188. 
BONA  NOTABILIA.  546,  7. 
BOND; 

staying  proceedings  in  actions  on.  483. 

assessing  damages  in  actions  on.  508,  8cc.  511. 
BOOKS.  See  tit.  Insfiecting  Books,  &c. 
BOTTOMREE-BOND,  action  on; 

assessing  damages  in,  without  a  writ  of  inquiry.  516. 

bail  in  error  in.  1077. 
BREACHES; 

negative  or  affirmative.  389. 

how  assigned.  Id.  390.  637  (i}. 
BRIBERY.  468. 
BRIEF.  774. 
BRINGING  Money  into  Court.  See  tit.  Money. 


CANAL-ACT,  distress  for  money  due  on,  not  within  the  stat. 

11  Geo.  II.  c.  19.  §  22.  891. 
CAPIAS  AD  RESPONDENDUM, 

when  it  lies.  122.  172. 

against  whom  it  does  not  lie.  110.  122. 

special,  in  K.  B.  122,3. 

quare  clausumf regit,  in  C  P.  61,  2. 

of  privilege,  in  the  Exchequer.  6? 

alias  ^ 

^^^""'*  I   catiias.   123,4. 

testatum         1 

non  otnittas  -' 

teste  and  return  of.  86  (a)  124. 

amendment  of.  125. 

bailable.  150. 

not  bailable.  146. 

common  or  serviceable. /<:/.  (oJ). 

CAPIAS  AD  SATISFACIENDUM.  9iiJ. 

generally;  953,  4. 

when  it  lies.  954.  1004. 

against  whom.  954. 1049. 

form  of.  955. 

CAPIAr> 


INDEX. 

CAPIAS  AD  SATISFACIENDUM; 

generally; 

for  the  residue.  955. 
signing  and  sealing.  Id. 
teste  and  return:  Id.  956. 

by  original.  Id. 
amendment.  956.  1028. 
returns  to.  956.  993. 
alias  &  testatum.  956,  7 . 
non  omittas.  Id. 
process  of  outlawry.  127.  957. 
how  far  considered  as  a  satisfaction;  ^7,  8.  1046. 
generally.  957. 
as  against  third  persons.  958. 
after  defendant's  death.  Id.  959. 

escape  or  I'escue.  960. 
discharge  on  lords*  act.  978. 
to  charge  bail;  993. 
direction.  994. 
teste  and  return.  Id. 

must  lie  four  days  in  the  sheriff's  office.  Id. 
cannot  be  sued  out,  or  returned, pending  error.  1071, 2.- 
want  of,  in  what  cases  pleadable.  1044. 
against  peers  of  the  realm.  115. 
si  laicus.  949. 

for  charging  defendant  in  execution,  in  a  county  gaol.  322. 
prisoners  on.  See  tit.  Prisoners. 
CAPIAS  utlagatum; 
general.  131,  2. 
special.  135. 
CAPIATUR, 

want  or  wrong  addition  of,  aided.  865. 
CARRIERS,  actions  against;  7. 

declarations  in.  399. 
pleas  in.  580,  1. 
CASE, 

actions  upon;  5,  See.  10.  374. 
limitation  of   15. 
process  in.  122. 

declaration  in.  377.  390.  392,  5cc. 
pleas  in.  598. 
judgment  in.  842. 
costs  in.  See  tit.  Costs. 
execution  in.  911. 
special.  See  tit.  Sfiecial  Case. 
Vol.  it.  3  T  CASES, 


INDEX. 

CASES,  in  the  House  of  Lords.  1 125. 
CASSETUR  billa  vd  breve^  entry  of;  633.  841. 

declaring-  after.  365. 
CERTAINTY, 

in  pleading.  405.  618.  776. 

awards.  751. 
CERTIFICATES, 

of  attornies.  See  tit.  Attomies. 

for  costs; 

on  the  43  Eliz.  c.  6.  615.  871. 

7  Jac.  I.  c.  5.  904. 

22  &  23  Car.  II.  c.  9.  879,  &c.  884. 

8  &  9  W.  III.  c.  11.  §  1.  900,   1. 

§  4.  884.  887. 
4  Sc  5  Ann.  c.  16.  §  5.617. 
CERTIFYING  Record.  See  tit.  Error. 
CERTIORARI, 

what,  and  when  it  lies.  329.  335.  1051. 
before  judgment.  330. 
after  judgment.  Id.  331,  2. 
out  of  what  court  it  issues.  333.  692. 
to  what  court.  334. 
direction.  Id. 
form  of.  Id. 
teste  and  return.  335. 
quashing  and  superseding.  Id. 
effect  of.  337. 
receipt  and  allowance:  Id. 

in  what  stage  of  the  cause.  Id.  338,  9. 
in  causes  under  five  pounds.  339. 
ten  pounds.  340. 
return  of; 

when  and  how  made.  341. 
to  what  officer.  1091. 
effect  of  fihng.  348. 
bail  on;  342. 

when  and  how  put  in,  excepted  to  and  justified.  343, 

&c. 
firocede7ido; 

what,  and  when  it  lies.  346,  &c. 
camiot  be  granted  after  return  filed.  348. 
nor  after  cause  remanded.  Id.  349. 
declaration  on;  349. 

de  novo.  Id.  350.  CER- 


il 


INDEX. 

CERTIORARI, 

and  mittimus;  333.  691. 
what.  691. 

when  the  record  must  be  certified,  or  only  the  tenor. 

691,2. 
form  o^  scire  facias,  after  removal  by.  331.  1008,  9. 
in  error;  1068. 
firacijie  for.  1110. 

by  the  plaintiff',  to  verify  his  eiTors.  1 104  (d).    1 109,  &c. 

1114. 
by  the  defendant,  to  disprove  them.  102,  3.  662,  3.  1 1 14, 

&c.  1120. 
by  the  court,  for  their  own  information.  1119,  20. 
CESSET  Executio.  804.  1005. 

Processus.  706,  7. 
CESTUI  que  trust.  605.  923.  939,  40. 
CHALLENGE  of  Jurors;  See  tit.  Jurij. 

over-ruling,  ground  for  bill  of  exceptions.  786,  7. 
CHESTER.  See  tit.  County  iialatine. 
CHRISTIAN-NAMES.  402. 
CHURCHWARDENS.  76. 
CINQUE-PORTS.  86.  573.  1058,9. 
CIRCUITS;  99. 

officers  of.  34. 
CLERGYMEN, 

arrest  of.  188,  9. 
proceedings  against.  93 1,  2. 
CLERK  of  the  Declarations; 

his  duty,  8cc.  274  {n). 
of  the  peace; 

cannot  act  as  an  attorney.  269. 
COGNOVIT  ACTIONEM,  what.  503. 
need  not  be  stamped.  Id.  (c). 
before  or  after  plea:  Id. 

relictd  verijicatione.  Id. 
objects  of.  Id. 

when  and  how  made:  Id.  504. 
upon  terms.  504,  5. 
withdrawing  plea.  504. 
of  the  whole,  or  part  of  cause  of  action.  Id. 

proceedings  on  each.  Id. 
waiver  of  irregularity.  214,  15.  508. 
by  principal,  does  not  discharge  bail.  244.  922. 
costs  on,  after  argument  of  special  case,  and  new  trial  or- 
dered. 810,  11. 
COLOUR, 


INDEX. 

COLOUR,  in  pleading; 
implied.  599,  600. 
express.  600,  1. 

want  of,  aided  by  statute  of  jeofails.  834. 
COMMISSION  of  bankrupt.  See  tit.  BaJikruJitcy . 

of  rebellion,  in  the  Exchequer.  62  (a). 
COMMISSIONERS,  for  taking  affidavits.  155,  6. 

recognisancesof  bail.  217,  &c. 
of  the  stamp-office.  440.  533. 

lottery.  539. 
under  inclosure-acts,  8cc.  741,  2.763. 
COMMITMENT;  239,  40.  320,  Sec. 

entry  of.  320,  1.  845. 
COMMITTITUR-PIECE;  320. 

filing  and  entering.  Id.  321. 
COMMON,  right  of,  how  stated.  396,  7; 
COMMON-PLEAS, 

means  of  commencing  actions  in.  6 1  (a), 
error  from.  1058. 

to,  lies  not  from  inferior  courts.  Id. 
COMPERUIT  ad  diem;  258. 

plea  of,  maybe  delivered.  621,  2. 

need  not  be  signed.  Id. 
issue  on,  by  whom  made  up.  666. 
COMPOUNDING  penal  Actions;  500. 
in  what  cases  allowed.  501. 
in  what  not.  Id. 

motion  for,  when  and  how  made.  441.  501. 
proceedings  thereon.  501,  2. 
COMPULSIVE  Clauses,  in  the  Lord'  act.  972,  Sec. 
CONCILIUM.  See  tit.  Demurrers unA  Error. 
CONCLUSION  to  Declaration.  See  tit.  Declaration. 
CONDITIONS,  precedent.  381,  2,  &c. 

subsequent.  382. 
CONFESSION,  judgments  by.  See  tit.  Judgments. 
and  avoidance.  See  tit.  Pleas  und  Pleading. 
without  avoidance.  828. 
CONSIDERATION, 

express  or  implied.  379. 
executed  or  executory.  Id. 
when  good.  380. 
CONSOLIDATING  Actions, 
motion  for.  441. 
in  general.  556. 
on  policies  of  insurance.  Sec  tit.  Policy  of  Insurance. 

CON- 


I 


INDEX.^ 

CONSTABLES  and  HEADBOROUGHS, 

actions  against;  74. 
limitation  of.  22. 
venue  in.  374. 
demand  of  copy  of  warrant  from.  74. 
costs  in  actions  against.  See  tit.  Costs. 
attornies  not  liable  to  be  chosen.  265. 
CONTEMPTUOUS  Words.  See  tit.  Attachment. 
CONTINGENT  Damages.  See  tit.  Damages, 
CONTINUANCE, 

of  process;  626,  7. 

before  declaration.  627. 
after  declaration,  and  before  issue.  Id. 
issue,  and  before  verdict.  Id.  844. 
verdict  or  demurrer.  627. 
judgment  by  default.  Id. 
in  error.  1 122. 
entry  of;  91.  1004. 

may  be  made  at  any  time.  627.  but  see  1096, 
certiorari  for,  how  directed.  1110  (ii). 
want  of,  when  aided  or  cured.  628. 
may  be  added,  after  judgment  in  a  penal  action.  Id. 
of  notice  of  inquiry.  See  tit.  Inquinj. 

trial.  See  tit.   Trials. 
pleading  after  last.  See  tit.  Pleas  and  Pleading. 
CONTRACTS, 

in  writing;  378. 

by  deed,  under  seal.  Id. 

agreement  without  seal.  Id. 
by  parol.  Id. 
express  or  implied.  Id. 
present  or  future.  Id. 
actions  upon ;  1 . 

by  and  against  whom  brought.  7,  8. 
limitation  of.   15. 
how  stated  in  the  declaration.  378,  9. 
special,  admitted  by  bringing  money  into  court.  568. 
CONTRIBUTION, 

action  for.  805  (v). 
CONVICTION,  new  trial  after.  820. 
CONVOCATION,  Members  of.  171. 
CONUSANCE, 
what.  574. 

in  what  cases  it  may  be  claimed.  Id.  575,  6. 
at  what  time.  418.  576,  7.  CONUSANCE, 


INDEX. 

CONUSANCE, 

how  claimed.  577. 
proceedings  after.  350. 
COPY  of  Process.  See  tit.  Process. 

declaration.  See  tit.  Declaration. 
deeds,  8cc.  on  oyer.  526,  7. 
written  instruments:  531,  2. 

in  what  cases  formerly  demandable.  Id. 
at  present:  532. 

when  the  defendant  is  in  nature 
of  a  trustee.  533. 
record  of  acquittal.  539.  v, 

causes.  324.  ^ 

COPYHOLD  Lands,  not  extendible  on  elegit.  940. 

tenant,  rule  for  his  inspecting  court-rolls.  440 

(y).  540. 
CORONER.  720. 
CORPORATION, 

must  be  sued  by  original.  25.  61  (a),  tl.  94,  96. 
process  against.  116. 
must  appear  by  attorney.  63.  105. 
not  entitled  to  essoin.  105. 
members  of,  not  subject  to  arrest.  171. 
inspecting  books  of.  541. 
COSINAGE,  damages  on  writ  of.  799. 
COSTS, 

as  between  party  and  fiarty; 

de  increinentOy  origin  of.  864,  5. 
in  abatement.  589.  633.  897,  8.  1049. 
bar, 

interlocutory;  864. 

on  setting  aside  proceedings  on  bail-bond.  250. 
\iv\X.s  oi  distringas.  108.  113. 
reversing  outlawry.  142,  3. 
motions:  457,  &c. 

when  a  rule  is  made  absolute.  Id. 
discharged.  458. 
setting  aside  proceedings,  for  irregularity.  435. 
staying  proceedings.  Id.  465.  996. 

of  declaration,  when  allowed  on.  481  (a), 
bringing  money  into  court.  558.  565,  6,  &c. 

570. 
COSTS, 


INDEX. 

COSTS, 

interlocutory ; 

on  amendments:  654. 

of  writs  of  error.  1094. 
after  error.  664.  1114. 
a  reference  to  arbitration.  See  tit.  Arbitration, 
remanct.  699  (/).  755. 
withdrawing  juror.  570.  785. 
examining  witnesses  on  interrogatories.  741. 
quashing  writs  of  error.  1095,  6. 
suing  out  original  writ,  after  error.  1114. 
of  writ,  &c.  deposit  to  answer.  200. 

trials  at  bar,  when  plaintiff  is  poor.  768,  9. 
special  jury.  727,  8. 
witnesses.  737. 
new  trials:  822,  3,  4. 

after  special  case.  810,  11. 
repleader.  830, 
for  not  proceeding  to  trial,  or  inquiry.  441.  522,  3. 

699.700. 
hy  firoviso.  702. 
payable  by  attomies,  for  improper  conduct.  58. 
final,  864. 

for  plaintiff; 

at  common  law.  Id. 

by  statute  of  Gloucester.  Id.  865. 

where  double  or  treble  damages  are  given,  or  a  ccv- 

txiXvpenaUy,  by  a  subsequent  statute.  865,  6. 

where  single  damages  are  given  by  a  subsequent 

statute.  866,  7. 
restrained,  by  43  Eliz.  c.  6.  870,  1. 

court  of  conscience-acts.    753.  871, 

&c.  874. 
21  Jac.  I.  c.  16.  in  actions  for  words, 

878. 
23  Sc  23  Car.  II.  c.  9.  in   trespass. 

879,  &c. 
43   Geo.  III.  c.  46.  §  4.  in  debt  on 
judgment.  888,9. 
extended  by  4  8c  5  W.  8c  M.  c.  23.  886,  7. 

8  8c  9  W.  III.  c.  11.  887,  8. 
in  inferior  courts.  276.  885,  6. 
for  defendants; 

at  common  law.  864.  889. 
by  statute  of  Marlcbcrere.  890. 

COSTS, 


INDEX. 

COSTS, 
final; 

for  defendant; 

on  a  nonsuit  or  verdict:  891,  2.  895,  6. 

when  proveable  under  a  commission.   181,  2. 
judgment  as  in  case  of  a  non-suit.  703.  708.  894. 
discontinuance.  628.  896.  904. 
nolle  prosequi.  630.  896. 
non-pros;  359.  415.  893.  896, 
in  error.  1093.  1105.  1107. 
demurrer.  669.  614,  &c.  870.  888.  897,  8. 
where  plaintiff  does  not  recover  the  sum  sworn  to, 

&c.  442.  898. 
in  arrest  of  judgment.  899, 
where  there  are  several  defendants.  Id. 
inactions  real:  865. 

writ  of  right:  708. 
of  ward.  899. 
penal:  866,  898.  902. 
on  game-laws.  903. 
of  account.  891. 

assault,  880.  883,  4.900,  1. 

and  battery,  865,  879,  80.  883. 
false  imprisonment.  880.  900. 
assumpsit.  865,  871,  880,  896. 
upon  the  case;  865,  891,  901. 

for  words,  878, 
of  covenant.  865.  880,  891. 
for  criminal-conversation,  6  (g*).  615. 
of  debt;  865,  871,  874,  5.  880.  891. 
on  judgment.  440,  879, 
for  not  setting  out  tithes.  866.  868, 
detinue,  891, 
for  distresses.  Id.  903. 
of  dower  unde  nihil  habet.  865. 

ejectment.  Id.  895.  899,  900.  90.5, 
error.  890. 

false-judgment.  1140,41. 
prohibition.  865.  868,  9,70. 
quare  impedit.  867. 
replevin; 

for  plaintiff.  865. 
defendant.  890, 
of  double  pleading.  615,  16,  17, 
against  several  defendants,  899,  90Q. 

COSTS, 


INDEX. 

COSTS, 

final; 

in  scire  facias.  865.  868.  1018.  1020.  1048,  9.  1103. 
trespass, 

for  plaintiff;  865.  879,  &c.  900. 
how  restrained.  879,  &c. 
against  inferior  tradesmen,  he.  886,  7. 
when  wilful  and  malicious.  884.  887, 
for  defendant; 

on  the  5  R.II.  891. 
of  double  pleading.  612,  &c. 
against  several  defendants.  899,  &c.  907. 
trover.  865.  880.  893.  901. 
waste.  865.  867,  8. 
actions  by  paupers.  68,  9. 

against  bail.  234,  5.  249,  Sec.  483.  241. 
bankrupts.  182. 
seamen  and  soldiers.  178,  9. 
justices,    constables,    and    officers    of 
the  Excise  axid  Customs.  903. 
by  and  against  infants.  72.  477. 
baron  and  feme.  1021. 
executors  and  administrators.  See  tit. 
Executors  and  Adininistrators. 
on  a  habeas  corfius.  352. 

feigned  issue.  901,  2. 
of  several  counts.  888. 

pleas  of  justification.  889. 
issues,  on  an  inclosure  act.  Id. 
double  pleading.  612,  Sec. 
double  or  treble,  what.  902,  3. 

when  recoverable,  by  the  plaintiff.  903. 

defendant.  Id. 
how  recovered.  903,  4. 
suggestions  for.  272.  442.  466.  876,  7,  8.  905,  4. 
certificates.  See  tit.  Certificates. 
rule  to  be  present  at  taxing  :  905. 

after  a  special  verdict.  808. 
taxation  of,  on  judgment  by  default ; 
final.  513. 
interlocutory.  525. 
'  demurrer.  687. 

verdict,  &c.  808.  843.  904,  5. 
affidavit  of  increased  costs.  904, 5. 
Vol.  II.  3  U  COSTS. 


INDEX. 

C6STS, 

final; 
judgments  reversed  for.  1129. 
means  of  recovering ; 

under  a  commission  of  bankrupt.  181,  2. 
by  action  or  execution.  905. 

,  arrest  not  allowed  for.  200. 
attachment:  437,  8.  905,  6. 

rule  for,  absolute  in  first  instance.  438.  906. 
may  be  moved  for  the  la^  day  of  term.  452 

906.. 
requiring  security  for.  476,  &c. 

payment  of,  in  former  action.  479,  80. 
setting  off,  against  costs.  996,  &c. 
as  between  attorney  zx\(\.  client .  See  tit.  Attomies, 
COVENANT, 

action  of;  4.  10.  95,  6.  373,  4. 

not  within  the  statute  of  limitations.  16. 

arrest  in.  150,  1. 

process  in.  105. 

declaration  in.  376." 

staying  proceedings,  on  payment  of  what  is  due.  48?. 

assessing  damages,  without  a  writ  of  inquiry.  515. 

particulars  of  demand  in.  535. 

bringing  money  into  feourt.  562.  565. 

pleas  in;  593. 

when  to  be  delivered.  622. 
issues,  by  whom  made  up.  666. 

damages,  when  some  of  defendants  are  acquitted.  803. 
judgment  in.  842. 
costs  in.  See  tit.  Costs. 
execution  in.  911. 

scire  facias  in,  for  damages  arising  after  judgment.  1000. 

1010. 
COVENANTS, 

dependent  or  independent.  382,  3. 
to  be  performed  at  the  same  time.  383. 
assessing  damages,  in  debt  on  bond  for  performance  of 

508,9,  &c.  1012. 
COVERTURE,  591. 

plea  of,  in  abatement.  580. 

debt  on  bond,  595.  599. 
when  pleadable  after  the  last  continuance.  775.  777. 
when  assignable  for  error.  1056,1107. 
costs  on  plea  of.  102 1 . 

COUNSEL. 


INDEX. 

COUNSEL,  how  heard  on  motions.  461,  2. 

attending  by,  on  inquiry.  522. 
COUNTER-AFFIDAVIT; 

when  received,  on  an  arrest.  165,  6. 
COUNTERMAND,  of  notice  of  trial.  See  tit.  Trials. 

inquiry.  See  tit.  Inquiry. 
COUNTS,  See  tit.  Declaration. 

pleas  in  abatement  of.  See  tit.  Pleaa  and  Pleading. 
or  matter  superfluous,  striking  out.  441.  558,  &c. 
bad  or  inconsistent,  how  cured  aftei?  a  general  verdict.  802. 
several,  costs  of.  888. 
COUNTY-COURT.  37.  50.  465,  6. 
COUNTY-PALATINE, 
process  into;  85. 
direction  of.  Id. 
service  of.  14.8. 
arrest  on; 

for  what  sum.  150. 
by  what  authority.  191. 
bail-bond  on.  Id. 
sheriffs  of,  amenable  to  the  court  for  contempts.  254,  5. 
changing  venue.  551,  2. 
pleading  to  the  jurisdiction.  573,  4. 
mittimus  to.  551.  672,3. 
trial  at  bar.  769. 
judgments.  856  (y). 
costs.  870.  879. 
execution.  332,  3. 
error  from:  1059. 

direction  of  writ  in  Lancashire.  1066. 
bail  in.  1075. 

alleging  diminution  in.  1 104. 
false-judgment  in -i.a77ca«/«re.  1140. 
COURT  of  CONSCIENCE-ACTS, 

attornies  not  in  general  subject  to.  265, 
mode  of  taking  advantage  of.  466. 
costs  on.  See  tit.  Costs. 
COURT-ROLLS;  See  tit.  Inspecting  Books,  Sec. 

motion  to  inspect  and  take  copies  of.  440.  442. 
CRIMINAL-CASES,    not  within   the  statutes   of   amend- 
ments. 661. 
CRIMINAL-CONVERSATION,  * 

action  for;  6. 

declaiation  in.  393. 
costs  in.  See  tit.  Costs. 

CROWN, 


INDEX.. 

CROWN,  See  tit.  King. 
CUSTOM,  what.  395. 
CUSTOMS  and  BYE-LAWS ; 

when  and  how  discussed,  on  a  removal  by  habeas  corfms, 

&c    347    S* 
CUSTOM-HOUSE  books,  inspecting.  539. 
CUSTOMS  and  EXCISE, 

actions  relating  to,  by  whom  brought;  468. 
against  officers  of ; 
limitation  of.  22. 
notice  of.  73,  4. 
where  laid.  374. 
bringing  money  into  court.  564. 
costs  in.  See  tit.  Costs. 
CUSTOSBREVIUM.  31.  1093.  1110.  1114. 

D. 

DAMAGES, 

what.  798, 

how  laid,  in  an  action  upon  contract.  352. 
trespass.  391,  2. 
case:  399. 
general.  Id. 
special.  400  . 
assessing,  on  8  8c  9  W.  III.  c.  II.  §  6.  1025,  Etc.  1047. 

§  8.  508,  9,  &c.  1012. 
notes  and  bills,  &c.  without  an  inquiry.  514, 15, 

16. 
demurrer  to  evidence.  517,  18.  795. 
excessive,  or  too  small.  524.  819. 
general,  arrest  not  allowed  for.  151. 
cannot  be  brought  into  court.  563. 

set  off.  604. 
-award  of  jury-process  for  assessing.  670,  1. 
on  verdict  for  plaintiff.  798. 

defendant  in  replevin.  Id. 
nonsuit  in  replevin.  Id. 
in  actions  real.  799, 

personal:  798. 

assessing  by  the  master.  514,  Sec 
how  ascertained  in  general.  842  (n). 
mixed:  799. 

ejectment,  &c,/rf,  DAMAGEg, 


INDEX. 

DAMAGES, 

in  actions  mixed; 

dower.  799. 
waste.  800, 
guars  itnfiedit,  8cc.  Id. 
in  scire  facias  i  See  tit.  Scire  Facias. 

error.  See  tit.  Error. 
single.  800. 

double  or  treble.  Id.  865,  G, 
nominal.  800. 

in  debt  on  bond,  for  performance  of  covenants.  Id.  801. 

1012. 
when  recoverable  beyond  the  penalty.  801. 
fixed  or  arbitrary.  Id. 
in  tire:  Id. 

how  rectified,  on  bad  or  inconsistent  counts.  802. 
several:  804,  5. 

in  a  penal  action,  on  a  bad  count.  802. 
where  there  is  judgment  by  default,  or  a  demurrer  to  part., 
and  an  issue  on  other  part.  670,  1.  802,  3. 
contingent.  631.  671.  798.  804. 

where  some  defendants  let  judgment  go  by  default  or 
demur,  and  others  plead  to  issue:  802,  Sec. 
when  the  latter  are  acquitted.  803,  4. 
where  defendants  sever,  or  join  in  pleading.  804,  5. 
omission  of  finding,  when  supplied  by  an  inquiry.  806. 
remittitur  of  part.  805,  6. 
increased,  in  action  for  a  mayhem.  806. 
verdict  security  for, on  anew  trial.  819. 
judgment  reversed  for.  1129. 
DARREIN-PRESENTMENT,  damages  on  writ  of.  800. 
DAY,  oiretorna  brcvium.  100. 

rules.  961,2. 
DEATH, 

waiTant  of  attorney  countermanded  by.  495. 
when  judgment  may  be  entered  after.  Id.  496.  846.  857. 
plea  of,  in  abatement,  579. 

in  what  cases  an  abatement  of  the  suit.  846,  &c.  1024,  8cc. 
execution  after,  o^Jieri facias.  915,  16. 
of  plaintiff,  in  general  no  cause  for  prisoner's  discharge. 

288,  9,  323. 
when  otherwise.  Id. 

no  objection  to  defendant's  discharge  on  the  lords' 

act.  964. 
<rf  prisoner  in  execution,  remedy  after.  958,  9. 

DEATH. 


INl)EX. 

DEATH, 

scire  facias  after.  991.  1009.  1024,  &c, 
of  testator,  when  it  need  not  be  averred  in  scire  facias.  1032. 
principal,  before  returaof  ca.  sa.  in  what  cases  pleadable. 

1044,  5. 
parties,  when  assignable  for  error.  1056.  1  lor. 
how  assigned.  1 107^  8. 
when  it  abates  a  writ  of  error.  1096,  &c. 
DEBT, 

action  of;  4.  9.  10.  95,  6.  573,  4. 

limitation  of.  15,  16. 
original  writ  in.  93. 
process  in..  122.  105. 
arrest  in.  122.  150.  152,  3.  187. 
outlawry  in.  126. 
declaration  in.  376. 
particulars  of  demand  in.  534,  5. 
pleas  in.  593,  &c. 
on  judgment: 

limitation  in  actions  of.  21. 
staying  proceedings  in,  pending  error.  471. 
assessing  damages  in.  515. 
no  waiver  of  the  lien  created  by  it.  850  (w). 
suggesting  rfer^as^awV.  1017,  18. 
bail  in  error  in.  1079. 
reversal  of  judgment  in.  1 128,  9. 
costs  in.  440.  S79. 
on  recognisance;  237,  8.  994,  5,  6. 

in  nature  of  a  statute-staple.  988. 
when  it  may  be  commenced.  994. 
staying  proceedings  in,  pending  error.  474,  5. 

after  render.  483. 
bail  in  error  in.  1 109,  10. 
under  40s.  staying  proceedings  in  action  for.  465,  6. 
calling  for  particulars  of.  534. 

and  costs,  staying  proceedings  on  payment  of.  481,  Sec 
for  rent,  Sec.  staying  proceedings  in.  482. 
bringing  money  into  court  in.  562,  3. 
error  in.  1075,  &c. 
on  bond; 

limitation  in  actions  of.  19,  &c. 

staying  proceedings  in.  483,  8cc. 

changing  venue  in.  546.  548. 

assessing  damages  in.  508,  9,  &c.  1012,  Sec. 

DEBT, 


I 


INDEX. 

DEBT, 

on  a  promissory  note,  Sec; 
bail  in  error  in.  1079. 
judgment  in.  842. 
costs  in.  See  tit.  Coats. 
DECEIT,  action  for;  7.  393. 

breach  in.  389. 
DECLARATION, 
what.  361.366,  7. 
upon  a  certiorari  or  habeas  corfius.  349,  50. 

recordari  facias  loquelam^  &c.  359, 
against  prisoners,  in  the  actual  custody  of  the  marshal.  3il3, 

4.  sheriff,  8cc.  309. 
when  and  how  to  be  delivered.  311,  12,  13^ 
upon  an  attachment  of  privilege.  273. 
ftfter  an  outlawry.  140(6). 

against  peers  and  membersof  the  House  of  Commons.  115, 
when  to  declare  in  general.  361. 
in  chief:  Id. 
by  bill; /rf. 

time  for  declaring.  Id. 
further  time.  362. 

motion  for  plaintiff  to  declare  peremptorily. /rf.  363. 
by  original;  440. 

time  for  declaring,  nonsuit,  &c.  363,  &c. 
by  the  bye:  361.  365,  6. 
by  bill; /cf. 

at  the  suit  of  the  same  plaintiff.  Id.  402. 

a  third  person.  366. 
by  original.  Id. 
parts  of; 

title.  Id.  367,  &c. 
venue.  See  tit.  Venue. 
■commencement; 

by  bill.  376. 
original.  Id. 
in  actions  upon  contracts:  378. 
the  contract.  Id. 
consideration.  379. 
inducement.  381. 
averments; 

what,  and  when  necessary.  381,  2. 
how  made.  386. 

of  performance  of  conditions  precedent.  381, 

&c. 
excuse  far  their  non-performance.  386. 

DECLARATION, 


INDEX. 

DECLARATION, 

parts  of; 

in  actions  upon  contract: 
averment; 

of  facts  necessary  to  ascertain  plaintiff's  de- 
mand. 387. 
request.  Id. 
notice.  388. 
breach.  389. 
damages.  390. 
in  actions  for  wrongs:   , 
the  injury  complained  of; 
immediate.  390,  1. 
consequential.  392. 
inducement,  in  actions  for  malfeazance:  393. 
affecting  persons.  Id. 

real  property.  Id.  394. 
personal  property.  397,  8. 
in  actions  for  nonfeazance.  398. 
misfeazance.  399. 
damages,  in  trespass.  391. 
case,  399,  400. 
conclusion:  400. 
pledges.  401. 
qualities  of; 

correspondence  with  process:  401,  2. 

in  the  names  and  description  of  the  parties.  402,  3 
cause  of  action.  404. 
precision  and  brevity.  404,  5. 
defects  in; 

how  taken  advantage  of.  405. 
cured.  Id.  406. 
copy  of,  by  whom  made.  406. 
delivered,  or  filed:  Id.  407. 
absolutely.  409. 
be  bene  esse.  Id.  410. 

Q.  on  process  returnable  the  last  return.  410. 
paying  for.  406.  408,  9. 
filed,  only  good  from  the  time  of  notice.  408. 
amendment  of.  391.  652. 

in  scire  facias.  See  tit.  Scire  Facias.  •. 

DEEDS,  &c. 

must  be  delivered  up  by  an  attorney,  on  satisfaction  of  his 

lien.  r7,  8, 
DEEDS, 


INDEX. 

BEEDS,  See. 

notice  to  produce.  736. 
cannot  be  taken  in  execution.  917. 
DEFAULT,  See  tit.  Judgments  by  Default. 
at  Msi  JPrius;  717. 

repleader  not  allowed  after.  830. 
DEFEAZANCE, 

on  warrant  of  attorney.  491.  ' 

DEFENCE, 

when  and  how  made.  584. 
DEMAND, 

of  copy  of  warrant;  74,  &c. 

evidence  of  service  of.  76. 
declaration;  363,  &c. 

on  removal  by  fione  or  recordari,  S^c.  359. 
plea;  317.  432,  3. 

in  scire  facias.  1041. 
replication,  Sec.  646. 
money  on  award;  760. 

by  whom  and  how  made.  Id. 
costs.  25  K  906. 
DEMURRERS, 
what.  647. 
history  of.  648,  &c. 

to  the  whole,  or  part  of  declaration.  647. 
pleas,  replications,   Sec.  627.  419.  647. 
general;  647. 

what  may  be  taken  advantage  of  under.  650. 
cannot  be  waived.  623.  66  1. 
making  up  issue  on.  666. 
special;  648 

for  auplicity.  647,  8. 

misnomer.  4U3. 
strikin}^  out.  and  giving  general  demurrer.  623.  651. 
rule  to  abide  by.  623,  4.  65  1. 
in  scire  faceaf.  See  tit.  Scire  J^acfas.  ^ 

error.  200,  8cc.  and  see  til.  Error. 
must  be  signed  by  counsel.  650. 
when  considered  as  issuable  pleas.  428,  9,  30. 
amendments  after.  656. 
demurrer-book;  666. 

how  it  concludes.  675. 
by  whom  made  up.  6(')6. 
when  returned:  676,  7. 

after  paper-book.  678. 
entering  of  record.  682,  3. 
Vol.  II.  3  X  DEMUR- 


INDEX. 

DEMURRERS, 

proceeding  to  argument  on;  679,  80.  6'84. 

where  there  are  several  issues,  in  law  and  in  fart:  684, 

5. 
assessing  contingent  damages  on.  798.  804. 
concilium;  438.  442.  684. 

motion  and  rule  for.  685,  6. 
rule  for,  need  not  be  served.  686. 
considered  as  a  step  in  the  cause.  Id. 
proceedings  on.  See  tit.  Motions. 
entering  cause  for  argument:  686. 

notice  need  not  be  given  of  it.  Id. 
delivering  demurrer-books.  686,  7. 
argument  in  C.  P.  459  (Ji). 
motion  for  judgment.  438.  442. 
judgment  on,  for  plaintiff; 
in  abatement.  687. 
bar:  Id. 

interlocutory.  508.  687. 
final.  Id. 
motion  in  arrest  of,  not  allowed  after.  625. 
costs  on.  See  tit.  Costs. 
to  evidence,  what.  791. 
how  they  arise.  785,  6. 
after  bringing  money  into  court.  567  {u). 
do  not  apply  to  the  pleadings.  792. 
not  allowed  in  the  king's  case.  Id. 
where  the  opposite  party  must,  or  may  join  in  demur- 
rer. 792,  o 
upon  evidence  in  writing.  792. 
parol  evidence;  Id.  793. 

of  a  circumstantial  nature:  793,  4. 
construction  of.  Id. 
under  the  control  of  court  or  judg^:  794. 

subject  to  appeal.  Id. 
how  taken  and  returned.  Id. 
assessing  damages  on.  517,  18.  795. 
refusal  of,  a  good  ground  fbr  bill  of  exceptions.  786,  7. 

794. 
DEPARTURE,  in  pleading.  See  tit.  Pleas  and  Pleading. 
DEPOSIT, 

of  money  in  sheriff's  hands,  under  stat.  43  G.  III.  c.  46. 

§  2.  200,  &c. 
paying  it  into  court.  200,  Sec. 

to  plaintiff.  200.  439. 
repaying  it  to  defendant.  200.  440. 

DEPO- 


fl 


INDEX. 

DEPOSITIONS,  of  witnesses  on  interrogatories,  740,  Sfc.. 
DETINUE, 

action  of;  7.  10.  95,  6. 

limitation  of.  15. 
original  writ  in.  93. 
process  in:  105.  122. 

of  outlawry.  126. 
declaration  in.  376. 
pleas  in.  591.  596,  7. 
inquiry  of  damages  in.  5I&. 
judgment  in.  843. 
costs  in.  See  tit.  Costs. 
execution  in.  911. 
DEVASTAVIT.  929.  933.  1018,  See. 

DEVISEE,  judgmentagainst,on  the  Stat.  3  W.^M.c.  14.856, 
DIES  DATUS.  363.  627. 

DILATORY  PLEAS.  See  tit.  Pleas  and  Pleading. 
DIMINUTION.  See  tit.  Error. 
DISCHARGE, 

matters  in,  when  pleaded  or  given  in  evidence.  592,  3. 

596,  7. 
DISCONTINUANCE, 

of  process.  See  tit.  Continuance. 

plaint  in  county,  no  objection  to  removal  by  recordari^ 

&c.  358. 
pleading;  238.  324.  617,  18.  626,  7. 

rule  for,  when  and  in  what  cases  allowed:  628,  9. 
service  of,  when  not  a  discontinuance.  629. 
without  or  upon  payment  of  costs   628. 
proceedings  thereon.  629. 

attachment  lies  not,  for  the  non-payiinent  of  Qosts.  Id. 
arrest  after.  185. 

aided  by  the  statute  of  jeofails.  835. 
cured  by  appearance  of  party.  Id. 
judgment  on.  841. 
costs  on.  See  tit.  Coats. 
of  writ  of  error.  1099. 
DISSEISINS,  double  or  treble  damages  on.  799  (i/). 
DISTRESS.  917.  927.  947. 
DISTRINGAS, 

by  original;  See  tit.  Proceta. 
costs  on.  See  tit.  Costa. 
in  the  exchequer  on  venire.  62  (a), 
taking  partnership  effects  under.  108. 

DIS- 


INDEX. 

DISTRINGAS, 

to  compel  appearance,  on  removal  by  ^lone  or  recordari, 

&c.  359,  60. 
for  bi'inging  in  the  jury.  See  tit.  Jury -Process, 
against  the  ba.liff  of  a  hberty.  257.  261  (g). 
iate  sheriff:  260,  1. 

to  compel  him  to  sell  goods,  taken  on  a  Ji./u. 

935. 
tenere  curia7n-    1 140. 
DISTURBANCE,  action  for;  7. 

declaration  in.  396,  7. 
DOCKETING  ISSUES.  681. 

i'.ivli:,meni:b.  See  tit.  Judgments. 
DOUBLE-PLEAS;  See  tit.  Pl^as  and  Pleading. 
costs  of  See  tit.  Co.^tfi. 
or  treble  damages.  See  tit.  Damages. 
costs.  See  tit.  Costs. 
DOWER, 

pleas  in.  610. 
damages  in.  799. 
costs  in.  See  tit.  Costs. 
bail  in  error  in.  1081,  2. 
DUPLICITY,  in  pleading.  618.  647,  8.  1 1 18. 
DURESS, 

when  pleaded,  or  given  in  evidence.  591.  595,  6. 
DURHAM.  See  tit.  County -Jxalatine. 

E. 

EJECTMENT,  376. 

what  shall  be  deemed  good  service.  443. 
motion  for  judgment  in,  against  casual  ejector.  442.' 
dispensing  with  personal  service.  Id.  443. 
admitting  landlord  defendant.  443. 
leave  to  take  out  execution,  after  he  has  failed. 

Id.  909,  10. 
staying  proceedings  in; 

pending  error.  472,  3. 

till  security  be  given  for  costs.  476,  7.  479. 

payment  of  costs  of  former  action.  479,  480, 
for  non-payment  of  rent.  486,  7. 
by  a  mortgagee.  487,  8. 
particulars  in.  535. 
pleas  in,  to  the  jurisdiction.  573. 

EJECT- 


INDEX. 

EJECTMENT, 

trials  at  bar  in.  768,  9. 
new  trials  in.  816. 
damagesin.  799. 
costs  in  .  See  tit.  Costa. 
necessary,  after  elegit.  941. 
note  on  lords'  act.  970. 
scirefacias  in.  1002,  3. 
bail  in  error  in;  1081,  2. 

in  what  sum  they  must  justify.  1085. 
death  of  nominal  plaintiff  in,  not  assignable  for  error.  1 107. 
ELECTION,  of  Action.  9. 
ELEGIT, 

what.  911.  937,  &c. 

when  it  lies.  938. 

against  whom.  Id.  95$. 

after  a  year.  938,  9.  1004,  5.     * 

in  different  counties.  939. 

upon  several  judgments.  852. 

proceedings  under; 

against  the  goods.  939. 

lands.  Id.  940.  950. 
terms  for  years.  940. 
notice  of  executing.  Id. 
inquisition  and  return.  Id. 
delivering  of  a  moiety.  941.  950. 
ejectment;  941. 

evidence  in.  Id. 
further  process  on;  Id.  942. 

after  an  eviction.  Id.  951. 
interest  allowed  on,  in  equity.  942,  3. 
creditor  by,  when  entitled  to  priority  against  the  crown. 

944.  946. 
extent  under,  when  pleadable.   1046. 
ELISORS.  85.  262.7^:0. 
ELY,  Isle  of, 

ctrtiorari  to.  334. 

process  into,  how  directed.  913  (n). 
ENLARGED-RULES.  456. 
ENTERING  ISCUE.  See  tit.  Jsme. 

Cause.  See  tit.  Trials. 
ENTRY,  of  writ,  &c.  to  avoid  the  statute  of  limitations.  91,2, 
name  and  place  of  abode  of  attornies.  47,  8. 
recognisance.  233, 
proceedings  in  «czre^c/a*.  1041. 
error.  1121,  2.  1124. 

EQUITY 


INDEX. 

EQUITY  of  REDEMPTION;  487,  g. 
not  affected  by  an  execution.  919. 
ERASURE, 

evidence  on  non  eat  factum.  595. 
ERROR,  writ  of, 
what.   1051. 
by  whom  broug-ht:  1052. 

a  plaintiff  to  reverse  his  own  judgment.  Id.  1 100. 
on  judgments  against yc'/ne-TOT'fn's.  1052,  3. 

principal  and  bail.  1053. 
several  defendants: /rf.  1054. 
summons  and  severance.  1054, 
5.  1 109. 
when  it  lies; 

generally:  1056. 

for  error  in  fact.  Id.  1057.  1 107. 
law.  1058.  1108,  9. 
for  denying  oyer,  when  demandable.  530. 

granting  or  denying  a  repleader,  improperly.  829. 
to  reverse  an  outlawry.  139. 
on  a  bill  of  exceptions.  790,  1. 
when  not; 
generally: 

where  the  defect  is  aided  by  verdict.  826,  &c.  1056. 
amendable.  651,  &c.  840.  105  6. 
cured    by   the  statutes   of  jeofails. 
832,  Sec.  1056. 
fbr  defects  in  mesne-process.  124. 
granting  oyer  improperly.  530. 
after  a  special  case.  809. 
,  judgment  in  .scire  facias.  1048. 

the  death  of  nominal  plaintiff  in  ejectment.  1 107. 
for  any  thing  which  contradicts  the  record,  Sec.  1 108,9. 
error  in  fact  and  in  law  together.  1 108.  H 18. 
upon  what  judgment.  1064. 
in  the  same  court; 

coram  nobis: 
when  it  lies;  1056,  7. 
for  error  in  fact.  1056. 

process.  Id.  1057, 
after  an  abatement,  &c.  1057. 
direction  of.  1056. 
form  of.  1067,  8. 
allowance  of.  1070. 

how  far  a  sujiersedeas  of  execution.  1083, 4. 

ERROR, 


INDEX. 

ERROR,  writ  of, 

in  the  same  court; 
coram  nobis: 

unnecessary  to  transcribe  on.  1088. 

sue  out  a  scire  facias.  HOC. 
rule  to  assign  errors.  1105. 
issue  on,  how  entered.   1121. 
tecovA  oinisi  fii-ius.  1122. 
•execution  on.  909.  1135,  &c. 
cost  on  reversal.  1 135. 
in  a  superior  court; 

to  the  King's-Bencb;  1058. 
from  the  Common  pleas.  Id. 
inferior  courts:  Id. 
except  in  London.  Id. 

the  cmywe-ports.  Id.  1059. 
stannai'ies.  1059. 
counties-palatine.  Id. 
Wales.  Id. 
from  the  King's  Bench ; 

to  the  Exchequer-chamber.  1059,  &c. 
House  of  Lords.  1061,  2. 
from  the  law-side  of  the  Exchequer; 

in  England.   1063. 
Scotland.  Id. 
from  Ireland.  Id.  1064. 
when  brought; 

before  judgment.  1064. 
after  judgment: /<:/.  J  065. 

statute  of  limitations.  Id. 
how  sued  out.  1065. 
direction.  1066. 
form  of  1067,  &c. 
teste  and  return.  1069. 
sealing.  1070. 
allowance  and  service.  Id. 
how  far  a  su/iersedeas ; 
in  genera!: 

when  sued  out  before  final  judgment.  1070,  71. 
after  final  judgment.  1071,  2. 
execution  begun.  1072,  3. 
vhei*e  bail  is  required.  1073. 
on  error  corain  riobis.  1C83,  4. 
proceedings  against  prisoners,  how  affected  by.  318,  19. 

327,  8. 
motion  for  leave  to  take  out  execution  pending.  439. 
•striving  proceedings  pending.  470,  &c. 
BO  objection  to  setting  oft' debt  on  judement.  604. 

ERROR, 


INDEX. 

ERROR,  writ  of,  ^  J 

an  answer  to  a  motion  for  new  trial.  821.  ^ 

repleader  cannot  be  awarded  after.  830. 
amendments  after:  662,  Sec. 

costs  on.  664.  1114. 
by  principal,  may  be  pleaded  by  bail.  1044,  5. 
bail  on.  See  tit.  Bail. 
certifying  or  transcribing  the  record:   1088. 

rule  ior,  i  n  the  King's-Bench  and  Common-Pleas./cf.  1089. 
practice  in  the  House  of  Lords.  1089. 
when  the  record  is  certified,  or  only  a  transcript.  Id.  1090. 
mode  of  certifying  or  transcribing; 
in  an  inferior  court.  1090,  91. 

the  Kmg's-Bench  and  Common-Pleas.  1091,  2. 

House  of  Lords.  1092,3. 
non-firo^  for  not  transcribing.  1093. 
amendment  of; 

at  comrnon-Iaw.  1093,  4. 
by  the  5  Geo.  I.  c.  13.  1094. 
costs  on.  Id. 
quashing; 

ground  of.  1095. 
motion  for,  in  what  court.  Id. 
when  it  may  be  quashed  in  part,  &c.  Id. 
costs  on.  Id.  1096. 
abatement  of; 

by  tl:e  death  of  the  parties.  1096. 

chief-justice.  1097,  8. 
the  prorogation  or  dissolution  of  parliament.  1098. 
bankruptcy.  Id.  1099. 
marriage,  Sec.  1099. 
discontinuance  of.  Id. 

scire  facias   quare  executionem  non,  in   K.  B.    1009. 

1100.  1141. 
what,  and  when  it  lies.  1 100. 
out  of  what  court,  and  when  it  issues.  Id. 
direction.  1101. 
form  of.  Id. 

teste  and  return.  Id.  1102. 

need  not  lie  four  days  in  the  sheriff's  office.  1 102, 
rule  to  appear  to.  Id. 

whether  the  plaintiff" in  error  may  plead  thereto.  Id. 

1103. 
consequence  of  not  assigning  errors.  1 103. 
alleging  diminution, 

in  the  exchequer-chamber; 

what,and  when  necessary.  662, 3.  1100.  1103,4. 
at  what  time  it  must  be  alleged.  1118,  19. 
not  allowed  against  the  record.  1 104.  1113. 

in  inferior  courts.  1 104. 
rule  for,  when  and  how  e:iven.  Id.  1105. 


II 


INDEX. 

ERROR,  writ  of, 

alleging  diminution, 

in  the  exchequer-chamber; 

non-firoa  for  not  alleging  diminution.  1 10-". 
in  the  House  of  Lords.  1 104  {d).  1112. 
rule  to  assign  errors; 

when  and  how  given.  1 105. 
on  error  coram  nobis,  &c.  Id. 
in  the  King's-Bench.  1 106. 

Exch-quer-chamber.  Id. 
House  of  Lords.  Id. 
assignment  of  errors; 
in  fact.  1 107,  8. 
law;  1108. 
common.  Id. 
special.  Id. 
in  fact  and  in  law,  not  assignable  together.  Id. 
by  several  defendants.  1 109. 
set  aside,  when  calculated  for  delay.  Id. 
delivering  or  filing.  Id. 
certiorari  for  an  original,  Sec. 

what,  and  when  necessary.  Id.  1 1 10. 
direction.  1110. 
teste  and  return.  Id.  1111. 
amendment.  1111. 
course  of  proceeding  thereon;  Id. 
in  the  King's-Bench.  Id. 

House  of  Lords.  Id.  1112, 
petition  for  original:    1113. 

practice  thereon.  Id.  1114. 
return  thereto.  1112,  13. 

in  what  cases  the  parties  may  have  a  second  certiorari 

11  14,  15. 
when  the  court  w  ill  award  it,  for  their  own  information. 

1119,  20. 

scire  Jacias ad  audicndian  errores.  in  K.  B.  1115,  16.  1141. 

/irocessiim    et    recordum.    1034. 

1116. 

compelling  plea  or  joinder,  in  the  Exchequer-chamber. 

1116. 
House  of  Lords.  Id. 
plea; 

common:  Id.  1117. 

in  nuUo  est  erratum.  1117,  Sec. 
special:  11 20. 

release  of  eri-oi's.  Id.  1121. 
delivering  or  filing,  622.  \Vl\. 
VoT..  TT  ■\  Y  ERROK' 


INDEX. 

ERROR,  writ  of, 

demurrers.  622.  1116.  1120. 
issues; 

making  up  and  entering:  666.  1121,2, 
in  the  King's-Bench :  1121,  2. 

on  error  coram  nobis.  1121. 
in  the  Exchequer-chamber.  1124. 
trial  of  issues  in  fact.  1122. 
arguing  errors  in  law; 

in  the  King's-Bench.  1122,  3. 

Exchequer-chamber.  1123,  4. 
House  of  Lords.  1125. 
motion  for  judgment.  438.  442.  1125. 
judgment  of  affirmance  or  reversal.  See.  1116.  1122.  1126 
when  the  court  are  divided  in  opinion.  1127. 
in  part,  or  for  the  whole.  1 128. 

what  judgment  shall  be  given,  on  the  reversal  of  the 

first.  1130 
damages:  1131,2. 

interest.   1132,  &c. 
costs.  890.  1131,  2,  5. 
execution;  1008,  9.  1114.  1135,  &c. 
outofvvhatcourt.  912.  1136,  7. 
remittitur  of  the  proceedings.  1 135,  6. 
direction.  1 137. 
return.  Id. 
restitution  after;  Id. 

to  what  the  party  shall  be  restored.  Id.  \  1 38 
ESCAPE, 

on  mesne-process; 

action  for:  207,  8.  255,  6,  7. 
how  defeated.  208. 
venue  in,  cannot  be  changed.  548. 
on  execution; 

from  the  tipstaff,  on  a  render.  239. 
declaration  for.  594. 
new  execution  after.  960. 
warrant  on.  Id. 

retaking  aftei-,  must  be  pleaded.  599, 
ESCROW.  595. 
ESSOIN;  100.  105,6.415,   16. 

not  allowed  in  personal  actions.  105. 
at  nid /irius.  716,    17. 
ESTOPPEL, 

what,  and  how  pleaded.  419.  582  (z).  585.  591.  621.  626. 

637. 
EVICTION. 


i 


INDEX. 

EVICTION.  941,2.951,2. 
EVIDENCE, 

written  or  unwritten:  734, 
public  or  private.  Id. 
circumstantial.  793,  4. 
must  be  the  best  the  case  admits  of.  734,  5. 
governed  by  the  pleadings.  734. 
what  is  to  be  proved ; 

on  general  issue.  Id. 
special  issue.  Id. 
manner  of  proving  it.  Id. 

of  payment,  or  release,  in  debt  on  bond.  19,  8cc. 
of  interest  by  indorsement.  21.  2. 
service  of  copy  of  demand  of  warrant.  76. 
bill  of  costs.  286. 
rules  of  court.  437. 

plaintiff 's  demand  necessary,  notwithstanding  admission 
in  defendant's  bill  of  particulars.   537. 
notice  to  produce  deeds.  Sec.  736. 
private  papers.  Id.  (n). 
books.  737. 

commencement  of  action,  or  suit  pending.  249. 
prison-books,  for  what  purpose  allowed.  322. 
on  execution  of  inquiry:  523. 

after  judgment  on  demurrer.  512.  687  (q). 
plaintiff  not  bound  to  disclose  it,  before  trial.  534. 
not  allowed  to  be  given  out  of  particulars.  537. 
when  it  must  arise  in  a  particular  county.  554,  5.  796,  7. 
demurrer  to.   See  tit.  Detnurrers  to  Evidence, 
admitting  or  rejecting  improperly,  a  good  ground  for  bill 

of  exceptions;  786,  7. 
or  new  trial.  818. 
on  both  sides,  a  ground  for  refusing  new  trial.  /(/. 
judge's  report  of,  on  motion  for  new  trial.  82  1,  2. 
in  ejectment,  founded  on  elegit.  941. 
in  debt  on  judgment,  suggesting  a  devastavit.  1018. 
EXCEPTION-DAY.  100. 

EXCEPTIONS,  bills  of.  See  lit.  Bills  of  Excefitiom. 
EXCHEQUER,  court  of; 

means  of  commencing  actions  in.  62  (a). 
error  from;  106.5. 

in  Ireland.    1 104  {d). 
interest  on  affirmance  in.  113" 

EXCHF.' 


INDEX. 

EXCHEQUER-CHAMBER, 

■writ  of  error  to;  1059.  1063. 
in  Ireland.  1 104  ((/). 

lies  not  for  error  in  fact.  1057.  1061,  2. 
return-clays  in.  1 123. 
EXCISE  unci  CUSTOMS.  See  tit.  Customs  and  Excise.' 
EXCOMMUNICATION, 
plea  of;  579.  585. 

after  the  last  continuance.  775. 
juds^ment  on.  589. 
EXCOMMUNICATO  CAPIENDO.  960. 
EXCUSE, 

matter  of,  must  be  pleaded  in  trespass.  597. 
of  performance,  when  pleaded  or  given  in  evidence.  592, 

&c.  596. 
EXECUTION, 

for  the  plaintiff.  911. 

defendant.  Id. 
when  sued  out; 
in  general.  909. 

after  writ  of  error.  1070,  Sec.  1083. 
false-judgment.  1141. 
injunction.  1006,  7. 

agreement  to  stay  execution.    504,    5,    909.    1005. 

1084. 
with  or  without  leave  of  court.  762.  909,  10. 
scire  Jaciai  ; 

after  a  year.  1000,  Sec. 

change  of  parties.  1021,  Sec. 
against  different  defendants,  for  the  same  debt.  910. 
heir,  when  charged  as  tertenant.  1032. 
executors  and  administrators.  1017,  £cc^ 
bankrupts.  1013,  kc. 
insolvent  debtors.  1016,  17. 
hundredors.  118,  &c. 
by  or  against  survivors.  1028,  9. 
for  what  sum ; 

in  debt,  for  a  penalty.  910,  11. 
on  annuity-bond.  lOU. 
after  award.  910. 
different  kinds  of.  91 1,  12, 
out  of  what  court.  332,3.912. 
in  what  order.  912. 
expences  of,  levying.  911. 
hy Jieri  facias.  See  tit.  Fieri  Facias, 
elegit.  See  ill.  Flegit. 

EXECU- 


INDEX. 

EXECUTION, 

by  extent.  See  tit.  Extent. 

capias   ad   satisfaciendum.     See  tit.    Capias  ad  Satisju- 

ciendum. 
prisoners  in.  See  tit.  Prisoners. 
poundage  on.    See  tit.  Poundage, 
m  scire  facias.  See  tit.  Scire  Facias. 
in  error.  See  tit.  Error. 
EXECUTORS  and  ADMINISTRATORS, 

how  far  they  represent  the  testator  or  intestate.   1030.. 
actions. by  or  against;  8.  18,  19.  26.  376. 
Hmitation  of.  23.  26,  7. 
joinder  in.  II,  12. 
affidavit  of  debt  by.  157.  164. 
arrest  in  actions  against.  83.  172,  3. 
not  entitled  to  the  privilege  of  attornies.  268, 
declaring  upon  general  process.  403. 

special  process.  Id. 
giving  warrants  of  attorney.  491,  2.  498.. 
pleas  by  or  against,  in  abatement.  580. 
bar.  590.  593. 
fiuis  darreifi  conti7mance.  775. 
in  scire  facias.  1046,  7. 
bringing  money  into  court  in  actions  by.  564. 
set-off  in  actions  by  or  against.  605. 
judgments  against; 

as  in  case  of  a  nonsuit.  703. 
upon  a  verdict,  8cc.  1017.  1019,  20. 
in  assumpsit^  8cc.  842. 
debt.  Id. 
of  assets  z«/«mro.  633.    1017,  18,  19. 
nunc  pro  tunc.  847. 
when  entitled  to  costs; 
in  replevin.  890. 

where  one  of  several  pleas  is  found  for  them.  894,  5 
when  not; 

where  one  is  acquitted.  901. 
when  liable  to  costs; 

on  a  judgment  o^  nonpros.  415.  893. 
«  discontinuance.  628.  893. 

for  not  proceeding  to  trial,  according  to  notice.  893. 
on  interlocutory  motions.  Id. 
nonsuit  or  verdict:  Id. 

as  for  a  contempt.  892.  (a:), 
forpleading  falselv.  894,  5. 

EXECU 


INDEX. 

EXECUTORS  and  ADMINISTRATORS, 
when  not  liable  to  costs; 

on  taxing  testator's  bill  of  costs.  283. 

judgment  as  in  case  of  a  nonsuit.  703  (j/).708.  894. 
nonsuit  or  verdict.  893,  4. 
judgment  of  assets  infutuvo.  894,  5. 
in  prohibition.  870. 
scire  facias.  1048,9. 
proceedings  by  or  against,  on  the  stat.  8  8c  9  JPT.  III.  c. 

II.  §  6.  848,  9. 
in  what  cases  personally  liable  on  award.  758,  9. 
not  affected  by  judgments,  unless  docketed.  857,  8. 

within  the  court  of  conscience  acts.  876. 
executions  against; 

in  general.  911.  1019. 

for  their  own  debts.  924. 

offuture  assets.  1018,  19. 

returns  to.  929.  933. 

after  return  of  7ndla  bona.  933.  1019,  20, 

devastavit.  929.  9Z3.  958.   954.   1019, 

20. 
signing  note  on  lords'  act.  970,  71. 
scire  facias  by  or  against.  1025,  Sec. 
error  by;  1055. 

bail  in,  not  required.  1082. 
proceedings  in.  1096,  7. 
Avhen  liable  to  costs  on  affirmance.  1 132. 
EXIGI  FACIAS,  writ  of;  127,8.  955,  6. 

de  novo.  123. 
EXONERETUR.  See  tit.  BailsindBazl-fdece. 
EXTENT, 

for  the  debt  of  the  cro^vn:  943. 
of  record.  944. 
4iot  of  record:  Id. 

immediate.  943.  948. 
in  aid.  944.  948,  9. 
with  respect  to  lands.  944,  £cc. 

personal  property.  916.  928.  946j 

&c. 
on  a  statute-merchant:  943. 

capias  si  laiciis.  949. 
writ  to  extend  the  lands,  &c.  Id. 
against  a  clerk.  Id. 
statute-staple.  943, 

EXTENT, 


INDEX. 

EXTENT, 

on  a  recognisance  in  nature  of  a  statute-staple:  943. 

process  against  the  body,  lands  and  goods.  949,  50. 
liberate.  949.  952.  980. 
against  an  heir,  on  the  obligation  of  his  ancestor.    See  tit. 

Heir. 
EXTORTION.  205.  981. 
EXTRA-COSTS.  904. 

Viamy  costs  on  new-assignment  of.  885. 

F. 

FALSE-IMPRISONMENT, 
action  of;  7.  582.(£). 
limitation  of.  15. 
costs  in.  See  tit.  Costs. 
FALSE-JUDGMENT,  writ  of; 

what,  and  when  it  lies.  1052.  1 139. 
by  whom  sued  out.  1 139. 
form  of.  Id. 

when  it  does  not  lie.  Id. 
bail  on.  Id.  1140. 
suing  out,  service  and  return.  1 140. 
from  what  time  it  is  a  supersedeas.  Id. 
assignment  of  false-judgment.  1 141. 
scire  facias  ad  audiendum  error es.  Id. 
joinder.  Id. 

subsequent  proceedings  Id. 
costs.  Id. 

execution.  912.  1141. 
FALSE-RETURN, 

action  for;  25  5,  &c.  930. 

cannot  be  stayed,  on  payment  of  the  money  levied.  488. 
changing  venue  in.  548. 
FAVOUR,  Challenges  to.  See  tit.  Jtiry. 
FEES, 

payable  to  the  king,  on  writs  of  recordari^pone,  8cc.  97  (y). 
by  prisoners.  296  {a).  302. 
to  the  marshal,  at  the  assizes.  773  (t'). 
action  for.  275,  kc.  905.  980. 
non-payment  of,  noexcusc  for  disobcying/jfldfas  cor/iusy  &c. 

FEIGNED  ISSUE;  665. 
costs  on.   Sec  tit.  Costr. 

FEME- 


INDEX. 

FEME-COVERT.  See  tit.  Baron  and  Feme, 
FERRIES, 

disturbance  of.  396  {g). 
FIAT, 

for  admission  oi prochein  amy,  or  guardian.  71, 
original  writ.  104. 
FIERI  FACIAS, 
what.  911.  913. 
form  of.  913. 
teste  and  return;  913,  14.  955. 

by  original.  955. 
signing  and  sealing.  914. 
amendment.  Id. 
relation  of; 

at  common  law.  Id. 
by  the  statute  of  frauds:  /(i.  915. 
as  between  the  parties.  915. 
after  the  death  of  either.  Id.  916 
against  purchasers.  914,  15. 

the  king.  9 1 6. 
betw^een  different  plaintiffs. /<:/. 
how  long  executable.  1072,  3. 
what  may  be  taken  under  it; 
in  general.  917. 
terms  for  years:  Id. 

how  to  be  assigned.  918. 
goods  fraudulently  sold.  919,  &c. 
in  actions  against  partners.  921.  1 165. 
what  cannot  be  taken  under  it; 
bank-notes,  &cc.  917. 
goods  distrained,  Sec.  Id. 
fairly  sold.  920. 
of  third  persons.  921. 
inquisition  of  property  on.  922. 
after  act  of  bankruptcy.  Id.  923. 
against  future  effects  of  bankrupt.  1014,  15. 
insolvent.  1016,  17. 
of  goods  of  wife  or  testator,  in  action  against  husband  or 

executors.  923,  4. 
sheriff's  power  and  duty  on. 924,  5. 
landlord's  lien  for  rent:  925,  Sec. 

how  enforced.  927. 
rule  to  return.  928. 

enlarging  time  for  returning.  Id.  921. 
different  returns  to.  928,  9.. 

FIERI 


INDEX. 

FIERI  FACIAS, 

proceeding's  on  return  oi nulla  dona; 
alias  and  filuricf::  929. 

need  not  recite  the  former  writ.  934. 
teste  and  return.  931. 
action  for  falfe-return.930. 

testatum.,  and  when  necessary  to  have  a  previous^eK 

facias.  929,  &c. 
non  omittas.  929,  30. 
against  a  beneficed  clerk.  931,  Stc. 
proceedings  on  return  of  ^en  feci  as  to  part; 
feri  facias  for  the  residue:  934. 

must  recite  the  former  writ  and  return.  Id. 
proceedings  on  return  ol fieri  fci  generally; 

action  against  the  sheriff,  for  money  levied:  933. 
not  within  the  statute  of  limitations.  934. 
proceedings  where  goods  remain  unsold; 
by  venditioni  ex/ionas.  934,  5. 

distringas  against  the  late  sheriff.  935. 
motion  to  set  aside.  Id. 

difference  between  erroneous  and  irregidar  judgments  and 

executions.  .?36. 
restitution  on  reversing  or  setting  aside  judgments.  936,  7. 

1138. 
levy  under,  when  pleadable.  937.  1046. 
FIERI  FECI, 

return  of;  929. 

proceedings  on.  933. 
FINE, 

scire  facias  OX)  error  to  reverse.  1034. 
direction  of  writ  of  error.  1066,  7. 
transcript  only  removed  from  C.  P.  1090. 
FINES,  on  orii.',in'al  writs;  97. 

deposit  to  answer.  200. 
FIXTURES,  when  liiibie  to  be  taken  in  execution.  917. 
FOREIGN-ATTACHMENT;  264. 
pica  of  592. 

when  a  good  answer  to  proceedings  on  awai'd.  7.')9. 
FOREIGNERS;  230  477,  &c. 

limitation  of  actions  liy.  18,19. 
F'OREIGN- Judgment.  515. 

Money.  See  tit.  Money. 
Plea.  587. 
FRANCHISE;  191  (/;). 

disturbance  of.  396  (g). 
FRAUD, 

in  obtaining  warrant  of  attorney.  491 
Vol..  11.  3  Z   '  FRAUD. 


INDEX. 

FRAUD, 

in  contract,  cannot  be  gone  into  on  executing^  inquiry.  525 

may  be  given  in  evidence,  on  non  est  factum   595. 

in  sale  of  goods,  will  not  defeat  execution.  919,  20. 
FREf:HOLD'-TENANT, 

when  allowed  to  inspect  books,  &c.  540,  41. 
FREEHOLDERS-BOOK.  725. 
FRESH-PURSUIT, 

recaption  on,  must  be  pleaded.  599. 
FUGITIV'ES.  182,  3.  306  (m).  633. 
FURTHER  PARTICULARS.  See  tit.  Particulars. 


GAMING, 

statute  of,  when  pleaded  or  given  in  evidence.  591.  596- 
house,  action  for  keeping.  468. 
GAOL.  200,  &c. 
GAOLERS,  their  duty.  204. 

punishment  of.  205,  &c, 
GENERAL-DAMAGES, 
cannot  be  set  off.  604. 

brought  into  court.  563. 
GENERAL-ISSUE'.  See  tit.  Pleas  and  Pleading. 

pleading,  when  allowable.  619. 
GLEBh-LAND,  not  extendible  on  ele^t.  940. 
GOOD  JURY    See  tit.  Jury. 
GRANT,  title  by,  how  pleaded.  395. 
GUARDIAN.  See  tit.  Jipfiearance  and  Infant. 
GUILD  ABLE.  191  (n). 


H. 


HABEAS  CORPUS, 

in  civil  cases.  296. 

cum  causa.  297.  299.  309. 

to  remove  a  defendant.  296,  7.  309. 

discharge  bail.  239.244.  298. 
ad  resfiondendum.  300. 

saihfaciendum.  301.  322. 

testijicandum.  See  tit.    Witnesses. 
how   the  defendant  may  be  removed  thereby,  into  thr 
custody  of  the  marshal.  301,  &c. 
how  long  he  must  remain  there.  302,  3. 

HABEAS 


INDEX. 

HABEAS  CORPUS, 

for  the  removal  of  causes  from  inferior  courts; 
what,  and  when  it  lies,  and  when  not.  335,  6, 
out  of  what  court  it  issues.  336. 
direction.  Id. 
form  of  Id. 
how  returnable.  Id. 
ground  of  removal  by .  Id. 
effect  of  337. 
receipt  and  allowance:  Id. 

in  what  stage  of  the  cause.  Id.  338,  9. 
in  causes  under^x'p  pounds.  339. 
ten  pounds.  340. 
return  of,  when  and  how  made.  341. 

what  is  good,  and  what  not.  Id. 
effect  of  filing.  348. 
bail  on ; 

in  the  court  below.  342,  3. 
above :  Id. 

when  and  how  put  in,  except- 
ed to,  and  justified.  343,  6tc. 
how  far  liable.  345,  6. 
firocedendo; 

what,  and  when  it  lies,  and  when  not.  346, 

&c. 
may  be  granted  after  the  return  is  filed.  348. 
declaration  on; 
de  novo.  350. 

in  what  time  delivered.  351. 
venue  in.  Id. 
non-firofi.  Id. 

time  for  pleading.  Id.  352. 

replication  of,  to  plea  of  statute  of  limitations.  352. 
costs.  Id. 
HABERE  FACIAS  POSSESSIONEM;  950. 

or  seinnamy  poundage  on.  980. 
HALF-PAY,  of  an  officer,  not  saleable.  968. 
HEADBOROUGHS.  See  tit.  Comtables  and  Headborougha. 
HEIR, 

when  and  how  liable,  in  case  of  alienation.  853,  4. 
judgment  against-  on  the  obligation  of  his  ancestor;  853. 
general.  854,  5. 
special;  Id. 

of  assets  infnturo.  1018. 
on  an  issue  oi  ricns  fier  discenl,  854,  5. 
docketing.  857,  8. 

HEIR, 


INDEX. 

HEIR, 

execution  at^ainst; 

on  a  general  judc^Tfient.  952,  3. 
special  judgment.  953. 
where  he  is  charged  as  tertenant.  1032^. 
scire facian  against;  1018. 

when  not  necessary.  1034. 
HEIR  and  TEKTENANTS,' 
el' git  against.  938. 
scircfacian  against;  1032,  &c. 

into  what  county.  1035,  6. 
returns  to.  1038. 
declaration  on.  1042. 
pleas  by.  1043,  4, 
HIGH-BAR-Monev.  463. 
HIGHWAY  ACTS; 

bringing  money  into  court  under.  564  {/). 
HOUSE  of  COMiMONS.  See  tit.  Members  of  the  House  of 

Commons. 
LORDS, 

writ  of  error  to:  1058,  Sec.  1062,3. 

lies  not  for  error  in  fact.  1057. 
HUE  and  CRY,  statutes  of.  116. 
HUNDREDORS, 

mode  of  proceeding  against;  61  (a).  77.  94.  109.  171. 
on  the  statutes  of  hue  and  cry.  116. 
riot-act.  119. 
black-act.  Id. 
for  seizing  wheat,  &c.  1 17  (/). 
destroying  mills,  &c.  117. 

I,  J. 

IDIOTS, 

appearance  by.  63. 
JEOFAH.S,  514.  525.  664. 

statutes  of,  and  decisions  thereon;  832,  Stc. 
applicable  to  the  original  writ.  832,  3. 

warrant  of  attorney.  833. 
declaration  and  pleadings.  406. 834, 5 . 
issue  and  similiter.  835. 
jury-process.  836. 
extended  to  judgments  by  default.  Sec.  838,  9. 
not  appHcable  to  criminal  cases,  or  oenal  actions.  839. 
IMMATERIAL  ISSUES.  See  tit.  Issues.  ' 

IMPARLANCE, 


INDEX, 

IMPARLANCE, 

what.  417. 
general.  Id. 
special;  Id. 

not  allowed  without  leave  of  the  court.  418. 
general-special.  417. 

what  may  be  pleaded  or  done  after  it.  418,  19.  528.  576. 

585,  6. 
plea  after,  how  taken  advantage  of.  419.  586. 
in  what  cases  formerly  allowed.  419,  20,  21. 

at  this  day.  424,  5. 
when  not  allowed:  105,  6.  424,  5. 

on  a  habeas  corjius.  35  1,  2. 

pone  or  recordari^  Sec.  360. 
entry  of,  by  bill.  668. 

not  necessary  by  original.  672. 
between  plea  and  replication.  Id. 
certiorari  for,  how  directed.  1110  (w). 
IMPRISONiMENT.   See  tit.  False-Lnfirisonment . 
INCLOSURE-ACT, 

costs  in  action  on.  889. 
references  on.  744. 
mode  of  enforcing  award  on.  763. 
INDEBITATUS  ASSUMPSIT.  3. 
INDEMNITY-ACTS.  39. 
INDIA-COMPANY,  Books  of,  inspecting.  539. 
INDICTMENTS,  trials  on.  701. 
INDORSEMENT, 

on  bond,  when  evidence.  21,  2. 
of  promissory  note,  need  not  be  averred.  389. 
notice  to  plead  on  declaration.  407,  8. 
INDUCEMENT,  to  declarations  on  contracts.  381. 

for  wrongs.  393,  Sec. 
certainty  of  405. 
INFANCY, 

pleas  of,  in  abatement.  579,  80. 

bar.  591.  596.  599.  610. 
mode  of  replying  to.  637  (/). 
INFANTS, 

limitation  of  actions  by.  16. 
must  sue  by  lirocluin  amy.  69,  70. 
cannot  inform  on  penal  statutes.  70. 
not  privileged  from  arrest.  183,  4. 
must  defend  by  guardian.  70. 

mode  of  appointing //rc/c/irz«  amy.,  or  guardian:  Id.  71. 
annexing  copy  of  rule  to  declaration  or  plea.  71. 

INFANTS 


INDEX. 

INFANTS, 

at  what  age  they  may  be  outlawed.  126. 
appearing  by  attorney,  error:  1056.  1107. 

in  what  cases  aided.  833. 
warrants  of  attorney  by,  voidable.  491,  2. 
costs  in  actions  by  or  against.  See  tit.  Costs. 
executions  against.  954. 

certiorari  for  admission  of  firochein  amy,  how  directed. 

11 10  (w). 
INFERIOR  COURTS;   See  tit.  Jccedas  ad  Curiam,  CWtio- 
rari.  Habeas  Corfius,  Pone,  and  Rec  or  dan  facias  loquelam, 
what  shall  be  deemed  a  commencement  of  suit  in.  25,  6. 
proceedings  in,  when  amendable.  664. 
process  in,  not  amendable.  661. 
new  trials  in.  8  16. 
judgments  in; 

costs  on.  See  tit.  Costs. 
execution  on,  after  removal.  332,  3.  1009  (0- 
form  of  scire  Jacias  on.  1008,  9. 
error  from;  1058,  9. 
bail  on.  1075,  &c. 
INFERIOR  TRADESMEN, 

costs  in  actions  against.  See  tit.  Costs. 
INFORMAL  ISSUES.  See  tit.  Issues. 
INFORMATION, 

affidavits  for,  or  on  shewing  cause  against,  when  entitled. 

450,  1, 
rule  for,  when  granted  towards  the  end  of  term.  453. 
INJUNCTION.  318,  19.  327,  8.625.  1006. 
IN  NULLO  EST  ERRATUM, 

plea  or  joinder  of.  1 108.  1 1 1 1,  8cc.  1115,  &c. 
INQUIRY,  Writ  of; 
what.  513,  14. 

on  the  Stat.  8  8c  9  JV.  III.  c.  ll.§  8.  508,9.512. 
to  whom  directed.  513. 
form  of.  Id. 
amended.  Id.  514. 
return  of.  514. 

when  dispensed  with,  in  actions  on  notes  or  bills.  439.  514, 

Sec. 
in  what  cases  allowed,  for  supplying  an  omission  of  the 

jury  at  the  trial; 
in  guare  iinfiedit.  517. 
on  a  demurrer  to  evidence.  517.  18.  795. 
in  actions  against  overseers.  518. 
in  what  cases  not  allowed; 
in  dctinw.  516. 

re/devi77.  5  1 7.  INQUIRY, 


INDEX. 

INQUIRY,  Writ  of; 

to  inquire  of  the  value  of  lands  descended,  on  the  stat. 

3  IV  &  iM.c.  14.  §  6.  855,  6. 
when   executed  before  chief-justice,  or  judge  of  assize. 

439.  518,  19. 
motion  for  good  jury.  Id. 
noticeof  executing;  55.  519,  20. 
after  notice  of  trial.  520. 
on  asctrp-^eri-'mqii\ry.  1020. 
before  chief-justice,  or  judge  of  assize.  512.  520. 
short  notice.  520. 
term's  notice.  Id.  1003  (w). 
continuance.  522. 
countermand.  Id. 
time  and  place  of  executing.  520,  &c. 
when  left  at  sheriff's  office.  522. 
notice  of  attending  by  counsel.  Id. 
execution  of,  may  be  adjourned.  Id. 
evidence  on;  523, 

after  judgment  on  demurrer.  512.  687  (y), 
costs  for  not  proceeding  to.  441.  522,  3. 
return  of.  523,  4. 
inquisition  on; 

rule  for  judgment.  523. 

motion  to  set  aside,  by  the  defendant.  442. 

plaintiff:  439.  524. 
grounds  of.  Id. 
when  made.  Id. 
stamping.  Id. 
taxing  costs.  Id. 
certiorari  for,  how  directed.  1110  (u). 
Avant  of,  aided.  525. 
new  writ  and  inquisition  ordered.  Id. 
costs  on,  in  trespass.  883. 

actions  for  words.  878,  9. 
INQUISITION, 

upon  outlawry.  5.  135,  6. 

writ  of  inquiry.  See  tit.  Inquiry, 
^ert  Jacias,  to  determine  property.  922. 
elegit,  and  return.  940. 
INSANITY, 

persons  affected  by,  not  within  the  statute  of  limitations.  16. 
no  ground  for  discharging  defendant.  183,  4. 

bail.  184. 
may  be  given  in  evidence,  on  fion  ett  factum,  595. 

INSIMUL 


.  INDEX. 

INSIMUL  COMPUT ASSENT.  3.756. 
IN30L  V  ENT-D  KBTO  RS, 
acts  relating  to;  962,  &c. 

attornies  excepted  out  of.  269. 
when  and  how  discharged,  under  the  lords'  act.  See  tit. 

Prisoners . 
compellable  to  deliver  up  their  effects.  971,  Sec. 
actions  by  assignees  of.  8. 

proceeding  to  judgment,  Sec.  in  their  names.  849. 
not  liable  to  be  arrested.  182,  3. 

not  entitled  to  judgment  as  in  case  of  a  nonsuit.  706,  7. 
future  effects  of,  how  far  liable.  978.  1016,  17. 
judgments  agiiinst.  633.  1016,  17. 

by  assignees  of.  907. 
executions  against.  1016,  17. 
scire  facias  against.  Id. 
INSPECTING  BOOKS,  &c.  440.  442. 
of  a  public  nature:  538. 

books  of  the  sessions,  &c.  539. 

and  court-rolls  of  manor.  540,  L 
of  a  corporation.  541. 
of  a  private  nature.  534.  540.  736  {ji). 
rule  for,  when  made:  542. 
on  information.  Id. 

mandamus.  Id. 
inaction.  Id. 
INSTALMENTS, 

staying  proceedings  on  payment  of.  485,  6. 
scire  facias  in  debt  on  bond  for  payment  of.  1000.  1012,  13. 
INSTANTER,  meaning  of.  508  (;,/). 
INSURANCE.  See  tit.  Policy  of  Insurance. 
INTEREST, 

payment  of,  in  debt  on  bond.  19,  Sec. 
recoverible  on  bond,  though  not  expressly  reserved.  484,  5. 
when  allowed  beyond  the  penalty  of  a  judgment.  942,  3. 
bail  in  error  for.  1085  (,§•). 
allowance  of,  in  error.  1 132,  Sec. 
INTERLOCUTORY  JUDGMENT.  See  Wi.  Judgments. 
INTERROGATORIES;  See  tit.  Witnesses. 
on  attachment.  59.  209. 
under  lords'  act.  968,  9. 
costs  on.  741. 
JOINDER, 

of  action;  10. 

upon  contract.  Id. 
for  wrongs.  Id.  11. 

JOINDER, 


i 


INDEX. 

JOINDER, 

in  action,  of  different  persons.  11,  12,  13. 
in  demurrer,  must  have  a  Serjeant's  hand,  in  C.  P.  650  (i). 
error.  1116,  17.  1121. 
JOINT-TENANTS.  2.  580. 
JOURNIES-ACCOUNTS.  26,  7. 
IRELAND,  affidavits  made  in.  156.  161. 
arrest  in.  on  judgments.  187. 

proceedings  in,  on  stat.  43  Geo.  III.  c.  46.  §  2.  200, 
privilege  of  peers  of,  from  arrest.  170. 
plaintiff  residing  in,  must  give  security  for  costs.  478. 
error  from:  1063,  4. 

alleging  diminution  in.  1 104  (d). 
IRREGULARITY, 

in  general,  what.  434. 

when  and  how  taken  advantage  of  90,  1.  434,  5. 
waived.  91.  165,435.  190.  403. 
in  process.  90,  1.  147. 

proceedings  on  bail-bond.  248. 

against  the  sheriff.  263. 
setting  aside  judgments  for.  440.  507,  8. 
new  trials  for.  816. 

difference  between  irregularity,  and  complete  defect  in 

proceedings.  435. 
ISSUABLE  TERMS.  99. 

Plea,  what:  428. 

judgment  signed  for  want  of.  429,  30.  477. 
ISSUE-MONEY,  what.  678,  9. 
payment  of  abolished.  679. 
ISSUE-ROLL;  681. 

from  whom  obtained.  Id. 
contents  of.  Id. 
numbering.  Id. 
docketing  and  filing.  Id. 

entry  of  proceedings  on,  to  judgment.  843,  4,  5. 
ISSUES, 

upon  a  distringas.,  &c.  107,  8.  112.  136.  261.  438. 
pleadings,  what.  665. 
in  law.  Id. 
fact:  Id. 

triable  by  the  record.  Id. 
country:  Id. 
feigned.  Id, 
several  in  one  cause.  Id. 
Vol.  II.  4  A  ISSUES, 


INDEX. 

iSSUES, 

upon  pleadings; 

by  whom  and  how  made  up.  666. 
contents  of.  667. 
form  of,  by  bill;  Id, 
title.  Id. 

memorandum.  Id.  668. 
entry  of  imparlance.  Id. 
pleadings:  669. 
after  judgment  of  res/2owrff  as  ozw^fr. 

Id. 
by  original;  672. 
title.  Id. 

declaration  and  pleadings.  Id. 
how  concluded; 

on  an  issue  in  fact,  triable  by  the  coun- 
try. 669,  70,  &c 
award  of  iienire  facias: 
by  bill.  669,  70. 

original.  672,  3. 
on  several  issues  in  fact.  670. 
against  several  defendants,  who  plead 
separately.  Id. 
where   some  of    them    plead,    and 
others  let  judgment  go  by  de- 
fault. Id.  802,  3. 
on  several  issues,  in  fact  and  in  law. 

671 
where  the  sheriff  is  interested.  672 
in  a  county -palatine.  Id.  673. 
Wales.  674. 

Berivick  upon  Tweed,  Sec.  Id. 
where  an  impartial  trial  cannot  be 
had.  673. 
entry  of  suggestions.  Id.  674,,  5. 
on  an  issue  in  fact,  triable  by  the  re- 
cord. 675. 
law.  Id. 
general;  666.  676. 

delivery  of  :  676. 
against  several  defendants.  Id. 
after  striking  out  special  pleadings.  67S 
special;  666. 

paper-book:  Id. 

by  whom  and  when  made  up.  Id.  667, 
delivery  of.  676. 
rule  (o  return.  Id. 

ISSUES,. 


INDEX. 

ISSUES, 

upon  pleadings; 
special ; 

paper-book : 

time  for  returning.  676,  7. 
returning,  and  paying  for  the  entries.  678,  9. 
striking  out  special  pleadings,  and  giving  general 

issue.  678 
similiter,  and  demuiring.  Id. 
proceedings  thereon.  Id. 
consequence  of  accepting,  or  returning.  679. 
entering:  679,  80. 

rule  for,  when  and  how  given.  680. 
when  and  how  done.  680,  &;c.  714, 
by  defendant.  682,  3. 
when  formerly  ti'ied.  704  (e). 
immaterial,  what.  829. 

not  cured  by  verdict.  Id. 
informal,  what.  Id. 

aided  by  32  Hen.  VIII.  c  30.  Id. 
misjoining,  aided  by  the  above  statute.  835, 
in  scire  facias.  See  tit.  Scire  facias. 
error.  See  tit.  Error. 
JUDGES.  29. 
JUDGES-ORDER, 

for  particulars,  how  far  a  stay  of  proceedings.  534,  5. 
motion  to  set  aside.  442, 

make  it  a  rule  of  court.  Id. 
when  final.  464. 
how  appealed  from.  Id. 

enforced.  Id. 
report.  See  tit.  Aew  Trials. 
JUDGMENT-ROLL.  843,  Sec. 
JUDGMENTS, 
what.  841. 

arrest  of.  See  tit.  Arrest  ofJudgmetit. 
when  and  how  signed.  512,  13.  813(d).  841.  843. 
entering,  in  what  cases  necessary.  843. 

in  what  manner,  and  by  whom  done.  Id.  844,  5. 
after  the  death  of  parlies; 

at  common  law:  846.  857. 

nunc  pro  tunc.  438.  473,  4.  846,  7.  858. 
by  statute: 
where  either  party  dies,  between  verdict  and 
judgment.  847,  8.  1024,  5. 
JUDG. 


INDEX. 

JUDGMENTS, 

entering,  in  what  cases  necessary ; 
by  statute: 

where  either  party  dies,  after  interlocutory  and  be- 
fore final  judgment.  848.  1026,  7. 
after  death  of  on^^  of  several  parties.  849. 
plaintiff's  bankruptcy.  Id. 
insolvency.  Id. 
relation  and  effect  of,  at  common  law.  849,  &c. 
upon  the  statute  of  frauds.  856. 
as  to  freehold  lands.  850. 

leasehold  property.  Id. 
against  defendant  and  his  heirs,  &c.  850.  853,  &c. 
in  case  of  bankruptcy.  852,  3. 

against  an  heir,  on  the  obligation  of  his  ancestor.  8  5  3,  Sec  > 
restrained,  as  against  purchasers.  856.  862. 
mortgagees.  862. 
docketing  what,  and  by  whom,  when,  and  how  done.  257, 

8,  8cc. 
want  of,  when  relieved  against  in  equity.  860,  1. 
bringing  in  rolls  of:  845. 

consequence  of  neglect.  861,  2. 
registering.  862, 
amendment  of  Id.  863. 
in  abatement, 

for  plaintiff ; 

on  issue  in  fact.  588. 

law.  Id.  589. 
defendant;  589. 

of  cassetur  billa,  vel  breve.  633. 
in  bar, 

for  plaintiff; 
form  of : 

in  assznnfisit,  &c.  842; 
covenant.  Id. 
debt.  Id. 
annuity.  Id. 
detinue.  843. 
replevin.  842. 
trespass.  Id. 
by  confession.  See  tit.  Cognovit  Actionem. 
default,  what:  505. 
nil  dicit; 

for  want  of  plea  to  declaration.  421,  2. 
432.505,  6.  590. 
to  new-assignment.  506. 
in  scire  facias.  1040. 

JUDG- 


INDEX. 

JUDGMENTS, 

in  bur,  for  plaintiff ; 
by  7iil  (licit: 

for  want  of  plea  adapted  to  nature  of  action.  506. 

in  abatement,  in  due  tinit.  419. 

586.  588. 

affidavit  of  truth  of  plea  in  abatement. 

507.  588. 
issuable  plea,  after  judge's  order.  507. 
paying  money   into   court,  on  plea  of 

tender.  Id. 
right  delivery  of  plea.  Id. 
giving  oyer.  531. 
rejoinder.  506.  646. 
joinder  in  demurrer.  506.  778,  9. 
returning  paper-book.  506.  676,  7. 
how  signed,  between  essoign  and  first  day  in  full 

term.  215,  16. 
waiving.  507. 
setting  aside, 
for  irregularity; 

motion  for,  when  and  how  made.  440.  507. 
upon  affidavit  of  merits.  507,  8. 
by  non  sum  informatus.  505.  841. 
interlocutory; 

where  the  action  founds  in  damages:  508. 
on  demurrer.  Id. 

nul  tiel  record.  Id, 
in  debt.  Id. 
on  8  &  9  IV.  III.  c.  11.  §  8.  Id.  509. 

intent  and  construction  of  that  act.  510,  11. 
to  what  cases  it  does  not  extend.  511. 
proceedings  thereon.  5  12.    • 
how  signed.  Id. 

Q.  If  scire  facias  necessary  thereon,  after  a  year 

and  a  day.  1003. 
final;  508. 

when  and  how  signed.  513.  813  (d).  841.  843. 
no  rule  for  judgment  necessary.  Id. 
admission  of  cause  of  action.  523. 
within  the  statutes  of  jeofails.  838,  9. 
on  warrunt  of  attorney;  438.  500. 

how  .signed.  500.  JUDG- 


INDEX.. 

JUDGMENTS, 

in  bar,  for  plaintiff; 

after  award  in  plaintiff's  favour.  761,  2. 
non  obstante  veredicto;  617.  814. 
in  what  cases  given.  828. 
motion  for,  when  made.  840. 
how  it  differs  from  a  repleader.  830,  1. 
against  bankrupts.  1014,  15. 

insolvent-debtors.  1016,  17. 
for  defendant; 

form  of,  in  replevin.  843. 

other  actions.  Id. 
of  non-firos.  See  tit.  A'on-Pros. 
discontinuance.  841. 
7ioUe  firosecjui .  629,  8cc.  841. 
cassetur  di/la^  vel  breve.  841 . 
retraxit.  Id. 

nonsuit,  motion  to  set  aside.  439. 
as  in  case  of  nonsuit:  841. 

origin  and  foundation  of.  702,  5. 

in  what  cases  given,  and  in  what  not.  703,  4.  t 

after  bringing  money  into  court.  567  (?f).  ; 

record  entered  for  trial,  and  withdrawn.  705. 
at  what  time  it  may  be  moved  for; 
in  a  town-cause.  704,  5. 
country-cause.  705. 
the  same  term  issue  is  entered.  704  {g). 
motion  for,   affidavit  and  notice.   441,  2,  449  (j/). 

706. 
snaking  absolute,  or  discharging.  706,  7. 

proceedings  thereon.  Id. 
causes  against:  Id.  740. 

•  absence  of  material  witness,  &c.  706. 
insolvency:  Id. 

cesset  processus.  Id.  707. 
peremptory  undertaking:  Id. 
proceedings  thereon.  707,  8. 
costs  on.  See  tit.  Costs. 
9:1.  demurrer;  438.  442. 
in  abatement.  687. 
bar:  Id. 

interlocutory.  508.  687. 
final.  687. 
to,  or  counterplea  of,  oyer.  550. 
to  evidence.  794.  JUDG- 


INDEX. 

JUDGMENTS, 

on  nul  tiel  record; 

quod p erf tcit  recordum.  690. 

defecit  de  recordo.  Id. 
in  abatement.  692. 
interlocutory  or  final.  Id. 
on  special  verdict,  motion  for.  438.  442. 

bill  of  exceptions.  791. 
of  repleader.  829. 

in  ejectment,  motion  for,  against  casual  ejector.  442. 
in  actions  against  executors  and  administrators.  See  tit. 
Executors  and  Administrator.^, 
bankrupts.  1014,  15. 

insolvent-debtors  and  fugitives.  633.  1016,  17. 
heirs  and  devisees.  See  tit.  Heir^  and  Devinee. 
in  scire  facias.  See  tit.   Scire  Facias. 

error.  See  tit.  Error. 
outstanding,  replication  to  plea  of.  637  (?). 
actions  on,  for  less  than  5/.  874. 

costs  in.  See  tit.   Costs. 
setting  off  costs  on.  906,  7. 

may  be  set  off,  though  error  be  pending  thereon.  604. 
erroneous  and  irregular,  in  what  cases  a  justification.  936. 
I'eversed  as  to  costs,  8cc.  1 129. 
JURAT,  of  Affidavits.  155.  417. 
JURATA.  712.  824. 
JURISDICTION, 

of  K.  B.  in  personal  actions.  28,  9. 
in  trespass.  Id. 
by  original  writ.  Id. 

attachment  of  privilege.  Id. 
bill.  Id. 
pleas  to.  See  tit.  Picas  and  Pleading. 
different  kinds  of,  and  when  claimed  or  pleaded.  5  74,  ;. 
of  court  of  requests  for  London.^  &c.  872. 
•FURY,  Trials  by.  See  tit.   Trials. 
(|Uulifications  of ;  715.784. 

in  London  and  Middlesex.  715  (?«'. 
process; 

■venire  facias.,  what.  714,  15. 

history  of  clause  of  nisi  firius.  715,  16. 
when  issued.  717. 
after  distringas.  718,  19. 
distringas,  what.  717. 
alias  and  plurics.  718. 
when  necessary  to  be  resealed.  722. 

.TURY: 


INDEX. 

JURY, 

process; 

to  whom  directed: 
sheriff.  672.  720. 
coroner.  Id. 
elisors.  Id. 

where  an  impartial  trial  cannot  be  had.  673. 
in  JVales.  674. 

Berwick  upon  Tweed.  Id. 
county -palatine.   672,3.720,  1. 
mittimus.  673.  720,  1. 
form  of :  721. 

tarn  ad  trianduin,  quam  ad  inqvirendum.  Id.  802j  3. 
hy  fir oviso.  721. 
teste  and  return.  721,  2. 
suing  out  and  sealing.  722, 

for  special  jury.  729. 
on  trial  at  bar.  771. 

new  trial.  824. 
in  what  cases  aided,  by  statute  of  jeofails.  836,  &c. 
common;  722. 

how  nominated,  summoned,  and  returned.  Id.  &c. 
good  jury.  439.  519.  725. 
special;  722. 

what,  and  how  nominated.  725. 
origin  and  history  of  ; 

on  trials  at  bar.  Id.  726.  771. 
in  other  cases.  726,  7. 
statutes  respecting.  727,  8. 
costs  of.  Id. 
motion  and  rule  for:  439.  442.  729. 

in  term-time.  703 
nominating  and  reducing.  729. 
summoning,  in  London.  Id. 
notice  to,  on  trials  at  bar.  771. 
once  appointed,  cannot  be  changed.  7  IS. 
views  by; 

in  what  cases  allowed.  730. 
statutes  respecting:  Id.  731. 

construction  of.  731,  2. 
motion  for,  and  when  of  course  or  not.  439,  442.  733, 
rule  for,  and  proceedings  thereon.  733,  4. 
challenges  of;  779. 
to  the  array.  Id. 

polls.  Id.  .TURY, 


INDEX. 

JURY, 

challenges  of ; 
to  the  polls: 

firofiter  honoris  resfiectum.  780. 
defectum.  Id. 
affectum.  Id. 
principal.  Id. 
to  favour: /</. 
triers.  Id.  781. 
delictum.  781. 
voire-dire.  Id. 
swearing;  782. 

after  view.  783. 
talesman;  Id. 

at  common  law.  Id. 
by  statute.  Id.  784. 
withdrawing  juror;  785. 
costs  on.  570.  785. 
withdrawing  from  the  bar;  795. 

what  they  may  take  with  them.  791,  2.  795. 
misbehaviour  of,  ground  for  new  trial.  817.  838  (a). 
objections  to,  or  mode  of  returning  them.  524. 
JUSTICES, 

of  assize.  766. 
in  eyre.  Id. 
Qi  the  peace, 

actions  against;  72,  3,  &c. 
limitation  of.  22. 
notices  of.  72,  3. 
venue  in.  374. 
may  plead  the  general  issue.  597. 
bring  money  into  court.  564. 
costs  in  actions  against.  See  tit.  Costa. 
JUSTICES.  50. 
JUSTIFICATION, 

matter  of,  must  be  pleaded  in  trespass.  597. 

K. 

KING, 

and  his  family,  privileged  from  arrest.  167. 
may  protect  his  debtor,  &c.  189. 
is  not  bound  by  the  statute  4  jinn.  c.  16»  610. 
has  a  right  to  demand  trial  at  bar;  767. 

though  out  of  the  common  course.  770. 
Vol..  II  4  B  KING, 


INDEX. 

KING, 

execution  for  debt  of;  See  tit.  Extent. 
priority  of.  916.  944,  &c. 
may  be  sued  out  without  a  scire  facias .  1004= 
KING'S-BENCH, 

jurisdiction  of,  in  personal  actions.  28,  9. 
error  in,  on  a  judgment  of  the  same  court.  1057. 
to,  from  other  courts.  1058,  9. 
from,  to  the  Exchequer-chamber.  1059,  &c. 
House  of  Lords.  Id. 


LACERAVIT.  883. 

LANCASTER.  See  tit.  County-Palathie. 

LANDLORD, 

his  claim  for  rent,  under  an  execution:  925,  &;c. 
how  enforced.  927. 
remedy  by  distress,  in  case  of  bankruptcy.  Jcl. 
LATITAT;  See  tit.  Process. 
what.  77. 

may  be  issued  in  the  first  instance.  Id. 
lies  not  against  peers,  8cc.  Id.  77. 

how  far  considered  as  a  commencement  of  suit.  24.  292, 

3,4, 
may  be  served  in  Middlesex.  148,  9. 
LEASES, 

in  what  cases  seizable  under  an  execution.  917. 
how  assigned  by  the  sheriff.  918. 
of  expelling  the  lessee.  Id. 
LEVARI  FACIAS.  136,  7. 
LIBELS, 

changing  venue  in  actions  for.  547,  8. 
LIBERATE, 
writ  of ; 

what.  949,  50. 
proceedings  on.  950. 
on  a  re-extent.  952. 
poundage  on.  980. 
LIBERUM-TENEMENTUM, 

may  be  given  in  evidence  on  the  general-issue.  597 

pleaded  with  not  guilty.  610,  11. 
plea  of;  641,  2. 

need  not  be  signed  or  filed.  622. 
issue  on,  by  whom  naade  up.  666. 
LICENCE, 

must  be  pleaded  in  trespass.  597. 

costs  on  plea  of.  884.  LIEN, 


INDEX. 

LIEN, 

for  balance  of  attorney's  bill.  57,  8.  287,  8cc. 
LIFE-GUARDSMAN,  place  of,  saleable  under  the  lords'  act. 

968 
LIMITATION  of  Actions, 
penal.  13. 
in  general.  15. 
on  the  lords'  act.  17,  18. 
in  debt  on  bond.  19,  ficc. 
actions  for  wrongs.  22. 
quo  warranto.  611. 
after  reversal  of  judgment  by  error.  15,  16. 
outlawry.  16. 
arrest  of  judgment.  15,  16. 
exceptions  in  favour  of  infants,  &c.  16. 

persons  beyond  sea.  Id.  17,  IS. 
actions  and  cases  not  within  the  statute.  16,  8tc. 
statute  of; 

when  pleaded,  or  given  in  evidence.  593,  4.  598. 
how  pleaded.  19. 

cannot  be  pleaded  after  a  regular  judgment.  508. 
what  will  take  a  case  out  of  it.  23,  See.  1 143. 
debt  barred  by,  cannot  be  set  off.  604. 
in  error:  1064.  5. 
plea  of  1120. 
LONDON, 

customs  and  bye-laws  in,  when  and  how  tried.  347,  8. 
trial  at  bar  in,  769. 
courtof  requests  for.  871,  &c. 
error  fi-om  courts  of.  1058. 
LORDS.  See  tit.  House  oi  Lords,  and  Peers. 
LORDS'-ACT;  200.  962. 
construction  of  963,  4. 
proceedings  under.  964,  8cc. 
note  for  allowance  on;  970,  1. 

by  several  plaintiffs.  /(/. 
judges  order  under,  final.  464.  971. 
compulsive  clauses  in.  972,  &c.  and  see  tit.  Prisoners 
LOTTERY-ACT, 
process  on.  84. 

affidavit  to  hold  bail  on.  160,  1. 

actions,  &c.  for  penalties  on,  by  whom  brought.  468,  9. 
LUNACY.  See  tit.  Insanity. 
LUNATICS, 

appearance  of.  63  (<"}. 

MAT,. 


INDEX. 

M. 

MAL-FEAZANCE.  5.  392,  3. 
MANDAMUS;  703.  838,  9. 

to  inspect  books,  &c   542  (e). 

examine  witnesses  in  India.  741,  2. 
enforce  award  of  commissioners,  under  an  inclosure-act. 

763. 
MANDATE,  to  the  sheriff.  19 J. 

by  the  sheriff.  192.  256.  929. 
MANDAVI  BALLIVO.  256.  929. 
MARINES,  arrest  of.  176. 
MARKET-OVERT.  600.  1. 
MARRIAGE;  See  tit.  Baron  and  Feme. 

when  a  revocation  of  warrant  of  attorney.  496,  7. 
MARSHAL'S  Acknowledgment.  320. 

Book.  242.  307.  320. 
MASTER'S  Report,  motion  for.  442.  452.  560. 

Rules.  See  tit.  Rules. 
MAYHEM,  damages  for.  806. 
MELIUS  INQUIRENDUM.  136. 
MEMBERS  of  CONVOCATION, 

privilege  of,  from  arrest.  171. 
MEMBERS  of  the  HOUSE  of  COMMONS, 

how  sued;  25.28.  61.  62  (a).  77.  93.  96.  110,  11. 

jointly  with  others.  11 1,  12. 
process  against,  by  original:  112. 

how  it  differs  from  process  against  other  persons.  1 1 1  {g). 
bill  against:  113,  14. 

its  commencement.  376. 
conclusion.  114.401, 
how  filed.  114. 
process  thereon:  Id.  115. 
form  of.  114. 
teste  and  return.  115. 
appear.ince.  114. 
decliLration.  115. 
cannot  cast  an  essoin.  105. 
be  arrested.  170,  1. 

attached  for  nonpayment  of  money.  171. 

nonperformance  of  award.  757. 
taken  in  execution.  115.  954.. 
bail  of,  discharged.  243.  1044. 
MEMORANDUM,  what.  667. 

reason  for,  and  different  kinds  of.  Id.  668. 

MEMO- 


INDEX. 

MEMORANDUM, 

general,  to  what  time  it  relates.  294. 

how  controlled  or  rectified.  Id.  295. 
special,  against  prisoners.  307,  8. 

attornies.  274.  295. 
not  used  in  actions  by  original.  672. 
MEMORIAL  of  Annuity, 

pleadings  respecting.  638,  9. 
MESNE-PROCESS,  execution  of.   144,  &c.  191,  &c. 

Profits,  costs  in  action  for.  882. 
MIL  ITIA,  Attornies  how  far  exempted  from  serving  in.  265,6, 
MILLS,  demolishing.    1 17. 
MISBLHAVIOUR, 

of  partv  or  jury,  ground  for  new  trial.  817. 
MISCONTINUANCE,  514. 

aided  by  statute  of  jeofails.  835. 
MISCONVEYING  of  Process, 

aided  by  statute  of  jeofails.  835. 
MISDIRECTION.  See  tit.  M-w  Trials. 
MISERICORDIA, 

want  or  wrong  addition  of,  aided.  863. 
MISFEAZANCE, 
what.  5.  393. 
action  for;  10. 

declaration  in.  399. 
MISJOINDER.  630. 
MISNOMER, 

consequences  of; 

on  bailable  process.  249.  582  (i). 
process  not  bailable:  402,  3. 

distringas.  108. 
jury-process.  837  (2). 
pleas  in  abatement  of:   582. 

mode  of  beginning  and  concluding.  584,  5. 
how  cured; 

by  amending  the  writ.  402. 

declaration,  652. 
declaring  in  right  name.  402,  3. 
not  material  after  judgment.  403.  954. 
MISPLEADING, 

aided  by  statute  of  jeofails.  834,  5. 
MITTIMUS;  See  tit.  Certiorari  and  Mittimus. 
to  a  county-palatine.  551.  672,  3,  720,  L 

MONEY, 


INDEX. 

MONEY, 

bringing  into  court ; 
origin  of.  561. 
in  what  cases  allowed; 
in  assumfisit.  562,  &c. 
covenant.  562.  555. 
debt  for  rent.  562,  3. 
on  bond.  484. 
on  policy  of  assurance.  563. 
in  actions  by  executors  or  administrators.  564. 
against  justices  of  the  peace.  Id. 

officers  of  the  excise  or  customs.  Id. 
in  what  cases  not  allowed; 

in  actions  for  general  damages.  563. 
upon  several  counts  or  breaches:  564,  5. 

costs  on  taking  it  Out.  565. 
under  the  stat.  43  Geo.  III.  c.  46.  §  2.  200. 

proceedings  thereon.  Id.  200. 
motion  for,  when  and  how  made.  441.  565. 
paying  it  in;  566. 

on  a  side-bar  rule  in  C.  P.  565  (yj. 
plea  of  tender.  Id. 
rule  for,  when  and  how  drawn  up.  Id. 
on  payment  of  costs.  Id.  567. 
service  of  copy  of   567. 
how  far  an  acknowledgment  of  the  right  of  action.  567,  8. 
an  admission  of  a  legal  demand  only.  568. 
generally,  an  admission  of  the  contract.  Id. 
taking  it  out  of  court; 

a  waiver  of  irregularity  in  bringing  it  in.  563. 
with  costs,  in  discharge  of  the  action:  568,  9. 

proceedings  thereon.  569. 
Q.  if  a  bar  to  a  new  action,  after  nonsuit.  570  {/). 
proceeding  in  the  action,  for  a  greater  sum;  569,  70. 
consequences  of  Id. 
costs.  570. 
Q.  Whether  the  plaintiff  can  be  nonsuited  after.  567  (u). 
foreign,  value  of,  how  ascertained.  515,  16. 
depositing  in  sheriff's  hands.  See  tit.  Deposit. 
in  sheriff's  hands,  may  be  taken  in  execution.  917. 
MORT-D'ANCESTOR,  assize  of,  damages  in.  799. 
MORTGAGEE, 

of  estate  in  Ireland.,  allowed  to  be  bail.  230. 
ejectment  by,  staying  proceedings  in.  487,  8. 
how  far  affected  by  judgments.  851.  857,  8.  860. 

MOTIONS, 


INDEX. 

MOTIONS, 

what.  436. 

on  the  crown-side :  437. 

for  an  attachment.  Id.  438. 
on  the  civil  side:  438. 

where  an  action  is  depending; 

on  behalf  of  the  plaintiff.  200. 438,  &c. 

defendant.  200.  440,  &?. 
in  ejectment.  442,  &c. 
where  no  action  is  depending; 

to  set  aside  an  annuity.  445,  &c. 
notice  of.  449,  50.  706. 

affidavit  in  support  of.  450,  &c.  and  see  tit.  jiffidavits. 
attendance  of  attornies  on.  57. 

what  may  or  may  not  be  made  on  the  last  day  of  term. 

452,3.742.765. 
for  rules :  See  tit.  Rules. 

course  observed  in  hearing.  461,  2. 
what  counsel  are  heard  on.  462. 
for  a  concilium;  438.  442. 

argument  of  causes  on:  459. 

when  and  how  brought  on.  Id.  1125,  6. 
what  counsel  are  heard  on.  462. 
moving  for.  Id.  463. 
when  appointed  for  particular  days.  459. 

to  come  on  peremptorily.  59,  60.  460. 
costs  on.   See  tit.  Costs. 
MUTINY-ACTS.  177. 
MUTUAL-Accounts; 

will  take  a  case  out  of  the  statute  of  limitations.  24. 
Debts;  See  tit.  Set-off. 

arrest  for  balance  of.  154, 
Promises;  3,  4.  384. 
actions  on.  3,  4. 

N. 

NEGLIGENCE, 

actions  for.  6.  393. 
NE-RECIPIATUR.  698.  772. 
NEW-ASSIGNMENT;  See  tit.  Pleas  and  Pleading. 

plea  of  not  guilty  to,  need  not  be  signed  or  filed:  622. 
issue  on,  bv  whom  made  up.  666. 

NEW. 


INDEX. 

NEW-ASSIGNMENT; 

costs  on  plea  of  not  guilty  to.  885. 

judgment  by  default  on.  889. 
NEW-TRIALS, 

origin  and  necessity  of.  814,  15. 
in  what  cases  granted;  816. 
in  ejectment.  Id. 
after  trial  at  bar.  771.  816, 
nonsuit:  816. 

for  defect  in  bill  of  particulars.  537  (c). 
concurring  verdicts.  Id, 
contrary  verdicts.  Id. 
in  inferior  court.  Id. 

after  special  case,  defectively  stated.  810. 
grounds  of  moving  for; 

want  of  due  notice.  816,  17. 

proper  jury   817.  838  (a), 
misbehaviour  of  prevailing  party.  817, 

jury.  Id. 
absence  of  parties  or  witnesses.  Id. 
discovery  of  material  evidence  after  trial.  Id.  818  (e)- 
misdirection  of  judge.  818. 
rejecting  witnesses.  Id.  60. 
error  or  mistake  of  jury.  818. 
in  a  penal,  hard,  or  trifling  action.  Id.  819. 

after  a  point  reserved.  818. 
■where  the  defence  is  unconscionable.  Id. 
for  excessive  damages.  819. 
smallness  of  damages.  Id. 
cannot  be  had  for  one  of  several  defendants.  Id. 

part  of  cause  of  action.  819,  20. 
in  criminal  cases.  820, 
motion  for,  when  and  how  made.  Id. 

not  allowed,  after  moving  in  arrest  of  judgment- 

821. 
affidavit  in  support  of.  Id. 
judge's  report  on.  Id.  822. 
rule  for,  and  proceedings  thereon  to  new  trial.  824, 
costs  on.  See  tit.  Costn. 
NIENT  DEDIRE.  549.  673,  4,  5. 
NIL  DEBET,  591. 

a  nullity  in  assiimjiait.  506. 
what  may  be  given  in  evidence  on.  593,  4. 
NIL  DIGIT,  judgment  by.  See  tit.  Judgtnerils. 
NIL  H  ABUIT  in  Tenementis,  plea  of,  594. 

NISI- 


JNDEX. 

NISI-PRTUS, 

clause  of,  in  jurj' -process.  See  tit.  Jury-fitoceit. 
order  of.  See  tit.  Arbitration. 
record  or  roll  of,  what.  711. 
contents  of;  669.  711. 
Placita.7\\. 
Jurat  a.  /rf.  712. 
Sciendum.  Id. 
by  whom  and  how  made  up.  713. 
sealinpf  and  passing.  682.  713. 
in  London  and  Middlesex.  713. 
at  the  assizes.  Id. 
resealing.  713,  14. 

must  be  passed  again,  but  need  not  in  general  be 
re-ingrossed,  for  new  trial.  824. 
amendment  of.  66 1 . 
in  error.  11 22. 
trials  at.  See  tit.  Trials. 
NOLLE-PROSEQUI,  626. 
what.  629,  30. 

on  plea  of  coverture,  &c.  630. 
of  the  whole,  or  part  of  cause  of  action.  Id. 
where  there  is  a  demurrer  to  part,  and  an  issue  to  other 

part.  631,2. 
in  actions  against  several  defendants.  630,  &c.  805. 
costs  on.  See  tit.  Coats. 
NON  ASSUMPSIT,  591. 

with  what  pleas  it  cannot  be  pleaded.  609  (J). 
what  mav  be  given  in  evidence  on.  591,  2. 
NON  COMPOS  MENTIS.  See  tit.  Insanity. 
NON  DAMNII  ICATUS,  plea  of.  596. 
NON  DEMISIT,  plea  of.  595. 
NON  DETINET;  591. 

what  may  l)e  given  in  evidence  on.  593.  596,  7. 
NON  EST  FACTUM;  591. 

suggestion  of  breaches  after.  511. 
what  may  be  given  in  evidence  on; 
in  covenant.  593. 

debt  on  bond,  or  other  specialty.  595,  6. 
special,  may  be  delivered.  621,  2. 

need  not  be  signed.  Id. 
issue  on,  by  whom  made  up.  666. 
NON-FEAZANCE, 
what.  5.  393. 
Vol.  II.  4  C  NON- 


INDEX. 


NON-FEAZANCE, 

action  for;  10. 

declaration  in.  398,  9. 
not  within  the  stat.  7  Jac.  I.  c.  5.903  {y). 
NON  INFREGIT  CONVENTIONEM, 

when  a  bad  plea.  593. 
NON  OBSTANTE  VEREDICTO.  See  tit.  Judgments. 
NON  OMITTAS.  See  tit.  Ca.  Sa.  Fieri  Facias,  and  Process. 
NON-PROS, 
judgment  of; 

for  not  adjourning  essoin.  105.  415,  16. 

on  removal  by  certiorari  or  habeas  corfms.  351. 

recordari  facias  loquelam.  359. 
for  not  declaring;  412,  &c. 
by  original.  363. 

bill. 412,  13. 
in  a  joint  action.  414. 
regular  or  irregular.  415. 
replying,  &c.  646. 
entering  issue.  680.  701. 
certifying  the  record.  1093. 
alleging  diminution.  1105. 
assigning  errors.  1 107. 
proceeding  after  original  sued  out.  1114. 
form  of.  843. 
costs  on.  See  tit.  Costs. 
motion  to  set  aside.  439. 
arrest  after.  185. 
NONSUIT, 

origin  and  history  of.  796. 
for  what  causes.  Jd. 

defect  of  evidence,  in  a  particular  county.  Id.  797. 
after  bringing  money  into  court.  567  (u). 
Q.  if  a  bar  to  a  new  action.  570  (/). 
advantage  of.  797. 

can  only  be  at  the  instance  of  defendant.  Id. 
in  an  action  against  several  defendants.  Id.  798. 
damages  on,  in  replevin.  798. 
iiile  for  judgment,  not  necessary  on.  813,  14. 
new  trial  after.  816. 
judgment  on ;  See  tit.  Judgments. 

as  in  case  of.    See  same  title, 
staying  proceedings  on  judgment,  pending  error.  471,  2. 
NON  SUM  INFORMATUS, 

judgment  by.    See  tit.  Judgmeiits. 
NON-TENURE,  plea  of.  1043,  4. 

NOT- 


INDEX. 

NOT-GUILTY, 

a  good  plea  in  debt  on  statute.  506. 
in  as.<iumpsit.   Id.  (n). 
plea  of,  in  trespass  or  case.  591. 
what  may  be  given  in  evidence  on.  597,  8,  9- 
NOTICE, 

of  action ;  72. 

must  state  process  intended  to  be  sued  out.  73. 
to  agents,  when  given.  55. 

on  process  to  appear  ;  ( 

when  necessary.   146,7. 
its  direction.   147. 

form.  Id. 
irregularity  in.  Id. 
of  declaration.  407,  8. 

not  necessary  in  bailable  actions,  in  C.  P.  407  {d). 
to  plead ;   Id. 

after  four  terms.  425,  6. 
of  set-off.  See  tit.  Set-off. 
trial;  See  tit.  Trials. 

want  of,  ground  for  new  trial.  816. 
of  inquiry.  See  tit.  Inquiry. 
of  striking  out  rejoinder,  &;c.  678  (c). 

render.  240,  41. 
need  not  be  given  of  executing  elegit.  940. 
to  produce  deeds  or  writings,  S:c.  736. 

how  it  differs  from  a  subpoena  with  a  duces  tecum. 

736  (o). 
of  motion.  449,  50.  706.  708. 

of  judgments,  what  and  when  material.  851.  860,  1. 
by  attorney, not  to  pay  money  to  his  client.  287,  8. 
of  petitioning,  Sec.  on  the  lords'  act.  965.  972.  974  (/), 
of  the  allowance  of  writ  of  error.  1071  (b). 
how  served.  47,  8. 

when  necessary  to  be  shewn  in  pleading.  388,  9. 
NOVEL  DISSEISIN,  assize  of,  damages  in.  799. 
NULLA  BONA,  return  of;  928. 
proceedings  thereon.  929,  30. 
NUL-TIEL-RECORD, 

plea  of;   529.  591.  1008.  1044.  1046. 

how  concluded.  See  tit.  Pleas  and  Pleadiiig. 

what  may  be  given  in  evidence  on.  596. 

must  be  delivered.  621,  2. 

need  not  be  signed.  Id. 

amendments  allowed  after  plea  of.  652. 

NUL- 


INDEX; 

NUL-TIEL-RECORD, 

replication  of,  to  a  plea  of  privilege.  46,  7.  172  (A), 

judgmentorrecognisance.  637  (z), 
must  have  a  Serjeant's  hand,  in  C.  P, 

645  (r). 
issue  of;  665. 

by  whom  made  up.  666. 
how  triable.  689,  90. 
proceedings  on  ; 

where  the  record  is  of  the  same  court:  689. 
notice  or  rule  to  produce  record.  690. 
continuance  of.  Id. 
where  the  record  is  of  a  different  court.  691,  2. 
certiorari  and  mittimus.  Id. 
judgment  on:   See  tit.  Judgments. 

not  within  the  statute  6  h  9  JV.  III.  c.  1 1.  §  8.  513. 
difference  on,  between  a  discontinuance  and  reversal  of 

judgment.  690,  1, 
NUNC  PRO  TUNC.  See  tit.  Judgments. 
NUSANCE,  action  for;  7. 

declaration  in.  396. 


O. 


OATHS,  of  Attornies.  45. 
OFFICERS  of  the  Court: 
judges.  29. 
on  the  crown-side; 
clerk  of  the  crown,  or  coroner.  30, 
secondary  and  clerk  in  court.  Id. 
clerk  of  the  rules.  Id. 
examiner.  Id. 
calendar-keeper.  Id. 
clerk  of  the  grand  juries.  Id. 
on  the  plea-side ; 

prothonotary,  or  chief-clerk.  Id. 
master  or  secondary,  and  assistant.  Id. 
clerk  of  the  rules.  Id. 
papers.  Id. 
declarations.  Id. 

common-bails,  /losteas  and  estreats.  Id. 
judgments.  Id. 

dockets,  commitments,  and  satisfactions.  Id. 
signerof  the  writs.  Id. 

OFFICERS 


INDEX. 

OFFICERS  of  the  Court; 
on  ihe  plea-side: 

sealer  of  the  writs;  32,  S. 

duty  of.  33  (t). 
custos  brevium.  31. 
filacers;  Id. 

duty  of,  in  signing  writs.  Id.  (k). 
exigenter.  Id. 
clerk  of  the  outlawries.  Id. 

inner  and  upper  treasury.  Id. 
outer  treasury.  Id. 
errors.  Id. 
bag-bearer.  Id. 
clerks  of  nisi  firius.  Id. 
chief-usher  and  crier.  32,  3. 
deputy-ushers  and  criers.  33. 
judges'-clerks.  31. 
of  the  King's-Bench  prison; 
marshal.  32. 
deputy-marshal.  Id. 
chaplain.  Id. 
clerk  of  the  papers.  Id. 

day -rules.  Id. 
turnkeys.  Id. 
tipstaffs.  Id. 
sheriffs.  33. 
at  nisi  firius  ; 

clerk  of  nisi  /irius.  34. 
associate  and  marshal.  Id. 
crier  and  train-bearer.  Id. 
of  the  circuits; 
clerk  of  assize.  Id, 
associate.  Id. 
clerk  of  arraigns.  Id. 

indictments.  Id. 
judge's  marshal.  Id. 
crier,  clerk,  steward,  and  tipstaff.  Id. 
lien  of,  for  their  costs.  287  (m). 
of  the  army,  half-pay  of,  not  assignable.  968. 
OFFICERS,  attornies  exempt  from.  265. 
disturbance  of.  396  {g). 
when  saleable  under  the  lords'  act.  968. 
ORDER  of  A7«z  Prius;  See  tit.  Arbitration. 
motion  to  make  it  a  rule  of  court.  442. 

ORI- 


INDEX. 

ORIGINAL- WRIT,  25.  61. 

jurisdiction  of  court  by.  28. 
what;  93. 

special.  61  (a), 
common.  Id. 
when  it  lies.  93. 

in  what  cases  necessary.  Id.  9i.  97.  126,  7. 
benefit  of  proceeding  by.  94.  1062. 
for  commencing  or  removing  actions.  95. 
de  cursu  or  magistralia.  Id. 
fircecipe,,  or  •«"  tefecerit  securum.  Id.  9S. 
by  whom  issued.  96. 
when  and  how  sued  out.  Id.  97. 
form  of.  96. 
direction.  97. 

teste  and  return.  Id.  101,  2. 
amendment  of.  104.  661. 
declaration  by;  see  tit.  Declaration. 
venue  in.  375. 

need  not  repeat  the  original.  377. 
oyer  of,  cannot  be  demanded.  Id.  (ft).  529,  30. 
issues  by:  See  tit.  Issues. 

award  of  venire /ados.  672. 
want  of,  aided  by  verdict.  102.  832.  1 1 13. 

error,  after  judgment  by  default,  &c.  102.  1108. 

1113. 
how  assigned.  1108. 
confession  of.  1118,  19. 
suing  out,  after  error  brought.  1113,  14. 
certiorari  for:  1 109,  8cc.  1 1 14,  15. 

proceedings  thereon.  1111,  12.  1119,20. 
OVERSEERS, 

attornies  not  liable  to  be  chosen.  265. 
inquiry  of  damages  in  actions  against.  518. 
OUTLAWRY,  in  civil  actions,  what;  125,  6. 
in  a  separate  or  joint  action.  125.  326,  7.  362. 
forfeiture  upon.  125,  6. 
women  waived.  126. 
upon  mesne-process.  Id. 

final-process.  Id.  127. 
\\v\\.  of  exigi  facias.  127,  8. 

«//occmr  exigent.  128. 
proclamation:  Id.  129. 

teste  and  return  of.  1 29 . 
sheriff's  return  to.  130. 
foreign  proclamation.  129,  30. 

OUT- 


INDEX. 

OUTLAWRY, 

proceedings  on  the  exigent :   130, 
arrest.  Jd. 

voluntary  appearance.  Id. 
bail.  Id.  131. 
judgment  of  outlawry,  or  waiver.   131. 
charging  defendant  in  execution  on.  322. 
cafiias  utlagatum.,  general  or  special ;  1 3 1 . 
form  of  the  general  writ:  Id.  132, 
proceedings  thereon.  132j 
bail.  Id.  133. 
bail-bond.   134. 
form  of  the  special  writ:  135. 
.  proceedings  thereon.  Id. 
inquisition.    136. 
retuiTi.  Id. 

transcript  into  the  Exchequer.  Id. 
venditioni  exponas.  Id. 
scire  facias.  Id. 
levari  facias.  Id.   137. 
bill  of  discoveiy,  &c.  137. 
how  to  obtain  satisfaction  from  the  outlaw's  property.  1 37,8, 
of  reversing  it,  by  writ  of  error  or  motion.  139.  440. 
appearance.   139,  40. 
bail.   140,  &c. 
costs.  See  tit.   Costs. 
restitution.   143. 

limitation  of  actions  after  reversal.  16. 
declaration  after.    140(A). 
pleaof;  579.   589. 

after  the  last  continuance.  775.  777. 
after  judgment.  957. 

in  a  civil  suit,  considered  as  an  exe  ution  within  the  8  jinn. 

c.  14.  927. 
landlord's  remedy,  after  a  distress  made  and  outlawry  re- 
versed. Id. 
OYER, 

of  deeds,  Sec.  in  what  cases  demandable; 
by  defendant.  526,  7. 
plaintiff.  Id. 
by  and  of  whom  demanded.  527. 
cannot  be  dispensed  with  by  the  court.  Id. 
when  necessary  to  bu   demanded  during  the  same 

term.  523. 
what  must  be  delivered  under  it.  527. 

OYER, 


INDEX. 

OYER, 

of  records.  688,  9. 

original  writs.  529,  30.  377  (^). 
mesne-process.    124. 
demand  of,  at  what  time  to  be  made.  418.  530, 
insistintj  upon.  530, 
contesting.  Id. 
no  settled  time  for  plaintiff  to  give  it.  Id. 
party  of  whom  demanded  must  carry  deed,  &c.  to  his  ad- 
versary. 527. 
in  what  time  it  must  be  given  by  defendant.  531. 
judgment  for  not  giving  it.  Id. 

setting  forth  the  whole  deed,  &c.  506. 
what  use  may  be  made  of  it  in  pleading.  531. 
time  to  plead  or  reply  after.  426.  530,  1. 

P. 

PAPER-Days;  459. 

argument  of  causes  on.  Id.  . 
PAPER-Book;  See  tit.  Issues. 

when  delivered  to  the  judges.  460.  686,  7. 
in  error.  1 122,  3. 
PARISH-BOOKS,  inspecting.  539,  40. 

officers,  costs  in  actions  against.  See  tit.  Costs. 
PARLIAMENT, 

abatement  of  writ  of  error  in,  by  prorogation  or  dissolu- 
tion of.   1098. 
PAROL-DEMURRER.  579,80,  1033.  1121.    , 
PARTICULARS, 

ofplaintiff's  demand;  534. 

in  what  cases  demandabler  Id. 
in  assum/is?r,  or  debt  for  goods  sold,  8cc.  Id. 
of  objections  to  abstract.  535. 
debt  on  bond,  for  performance  of  covenants,  &c. 

535 
where  there  is  a  general  form  of  declanng.  Id. 
in  ejectment.  Id. 
in  what  cases  not  demandable: 

in  special  assuj7i/isits,Sx.c.  Id,  536. 
actions  for  wrongs.  Id. 
summons  for;  534. 

when  taken  out.  Id. 
order  on:  Id. 

how  far  a  stay  of  proceedings.  535. 
how  given,  536,  7 

PARTI- 


INDEX. 

PARTICULARS, 

of  defendant's  set-Off;  536. 

summons  and  order  for.  Id. 
consequence  of  not  delivering.  Id. 
summons  and  order  for  further  particulars.  Id. 

to  amend  particulars.  Id.  537, 
effect  of,  at  the  trial.  537,  8. 

Q.  if  a  ground  for  striking  out  inapplicable  counts.  559. 
PARTNERS, 

affidavit  of  debt  by.  1 64. 
distraining  effects  of.  108. 
actions  by  or  against;  8,  9. 
pleas  in.  580,  1. 

set-off  in,  when  allowed.  604,  5. 
executions  against.  921. 
signing  note  on  lords*  act.  970. 
PATENT, 

venue  in  action  for  infringing.  548. 
scire  facias  for  repealing;  982. 
costs  in.  1049. 
PAUPERS, 
what.  67. 

when  and  how  admitted  to  sue  in  forma,  fiaufieris.  Id.  68. 
effect  of  such  admission.  68. 
not  liable  to  costs.  Id.  69. 
may  receive  them.  69. 
how  answerable  for  delay.  Id. 
not  allowed  to  defend  in  forma  fiaufieris.  67. 

entitled  to  issue-money.  678. 
may  have  trials  at  bar.  768,  9. 
PAYMENT, 

when  presumed  in  debt  on  lx)nd.  20,  1. 
to  the  attorney  or  agent,  when  payment  to  the  principal.  55. 
of  money  into  court.  See  tit.  Money. 
when  pleaded  or  given  in  evidence.  592.  596.  1044.  1046. 
without  acquittance,  how  pleaded  at  common  law.  828. 
PEERS, 

how  proceeded  against;  25.  61.  62  (a).  77.  93,4.  96.  1 10, 

&c. 
jointly  with  others.    111,12, 
process  against,  by  original:  1 12. 

how  it  differs  from  process  against  other  persons.  1 1 1  (§■). 
cannot  cast  an  essoin.  105. 
privileged  from  arrest.  169,  70. 
Scotch  and  Irish  peers.  Id. 

PEERS, 
Vol.  II.  4  D 


INDEX- 
PEERS, 

cannot  be  attached  for  non-payment  of  money'.  170. 

non-perfovmance  of  award.  757. 
taken  in  execution.  115.  954. 
liable  to  attachment,  for  contempt  of  process.  170.  738. 
bail  of,  discharged.  243.  1044. 
PENAL-ACTIONS, 
limitation  of  13,  &c. 
where  laid.  374. 
arrest  in.  152. 

may  be  commenced  by  latitat.  293. 
compounding.  See  tit.  Comfioiuiding  Penal  Actions. 
staying  proceedings  in,  on  payment  of  the  penalty.  48 1 . 
on  the  Stat.  2 1  Jac.  I.  c.  4.  466,  7. 
other  statutes.  466,  See. 

till  security  be  given  for  costs.  477 
double  pleas  not  allowed  in.  610. 
amendments  in,  at  common  law:  659,  60,  1. 

by  adding  continuances.  628. 
not  within  the  statutes  of  amendments.  661. 
16  &  17  Car.  II.  c.  8.  1082. 
lords'  act.  964. 
issue-money  in.  678,  9. 
judgment  in:  863. 

as  in  case  of  a  nonsuit.  703.  706,  7. 
trial  of,  when  it  cannot  be  put  off.  710. 
notice  to  produce  deeds,  Sec.  on  vvbom  served.  736. 
damages  in,  not  recoverable  by  common  informer.  40 1 .  798. 

judgment  reversed  for.  1129. 
costs  in.   See  tit.  Coats. 
within  the  32  Hen.  VIII.  c.  30,  839. 
Q,  if  error  lies  in  the  Exchequer-chamber,  in  a  penal  action. 

1062,  3, 
PENALTY, 

arrest  not  allowed  for.  153.  159. 
•when  considered  as  the  debt  at  law .  486. 
staying  proceedings  on  payment  of.  482,  3. 
pleas  in  debt  for.  594. 
cannot  be  set  off.  604. 
PEREMPTORY-Days.  460. 
Paper.  461. 

Undertaking.  See  tit.  Judgments  as  in  case  of  a  MjusuU  . 
PERFORMANCE, 

when  pleaded,  or  given  in  evidence.  590.  592,  3. 
renlication  to  plea  of.  637  (?). 

PER 


INDEX. 

PER  MINAS, 

must  be  pleaded,  in  debt  on  bond.  595,  6. 
PERSON, 

pleas  in  abatement  to.  See  tit.  Pleas  and  Pleading 
PETITION, 

against  gaolers.  See.  on  the  lords'  act.  205,  6. 

for  day-rules.  961. 

on  the  lords'  act.  966. 

for  an  original  writ.  103.  1113,  14. 

a  writ  of  error.  1065. 
to  the  House  of  Lords  ; 

to  return  certiorari  by  a  short  day.  1112. 

have  the  cause  appointed,  for  a  short  day.  1 125. 
PETTY  OFFICERS, 

in  navy,  what.  176  (c). 
PEWS.  See  tit-  Seats  in   Churches. 
PLACITA.  711.  1115.  1124. 
PLEAS  and  PLEADING, 
time  for  pleading; 

upon  an  attachment  of  privilege.  273. 

a  bill  against  attornies,  &c.  275.  420. 

prisoners  in  the  custody  of  the 

marshal.  308,  9.  420, 
sheriff,  &c.  315,  &c. 
certioran  or  habeas  corfms.  351,2.419,  20,  425. 
Jione  or  recordari,  Sec.  360. 
upon  a  bill  oi Middlesex,  &c.  or  original  writ; 
formerly.  419. 
at  this  day  ; 

when  the  plaintiff  declares  absolutely.  42 1 . 

de  bene  esse.  422,  3. 
after  an  imparlance.  424. 
four  terms.  425. 
changing  the  venue.  426. 
demanding  oyer.  Id.  530,  1. 
amending  the  declaration.  42  6.  654. 
judgment  o(  resfiondeac  ouster.  589. 
to  the  jurisdiction.  585,  6. 
in  abatement.  Id. 

cannot  be  pleaded  before  bail  perfected.  423.  587. 
after  10  o'clock  at  night.  622. 
obtaining  further  time  to  plead  :  426,  7. 
motion  for.  Id.  441. 
a  month  what.  427,  «. 

PLEAS 


INDEX. 

PLEAS  and  PLEADING, 

general  order  of  pleadingf^.  572. 
pleas  to  the  jurisdiction:  573. 
in  local  actions.  Id. 
ejectment.  Id. 
transitory  actions.  Id.  574. 
when  to  be  pleaded.  418.  585,  6,  7. 
mode  of  concluding.  585. 

must  be  pleaded  in /ier^o/z,  and  with  only  Aa//" de- 
fence. 584. 
in  abatement; 

to  the  person  of  plaintiflF.  579. 

defendant.  418.  537,  8.  580,  &c. 
count.  581. 
writ;  Id. 

form  of.  Id.  582. 
action  of.  583. 
in  scire  facias.  1034.  1043. 
general  requisites  of.  583. 
may  be  pleaded  by  attorney.  584. 
beginning  and  concluding.  583,  4,  5. 
cannot  be  pleaded  after  a.  full  defence.  584. 
when  to  be  pleaded:  418.  585,  6,  7. 

before  bail  perfected.  587. 
must  be  verified  by  affidavit.  587,  8. 

signed  and  filed.  588. 
replying  or  demurring  to.  Id. 
judgments  on.  See  tit.  Judgments. 
writ  may  be  abated  in  part,  and  stand  good  for 

the  remainder.  583. 
time   to   plead,    after  judgment  of  resfiondeat 

ouster.  589. 
in  what  cases  a  second  plea  in  abatement  is  al- 
lowed. Id. 
in  bar,  what;  590. 

grounds  of  defence  on: 

in  actions  upon  contracts.  Id. 
for  wrongs.  Id. 
in  denial; 

of  the  whole  cause  of  action.  591. 
a  part  of  it.  Id.  595. 
in  confession  and  avoidance; 
by  matter  precedent.  591. 
subsequent.  Id. 
by  way  of  estoppel.  Id. 
what  is  aided  or  waived  by.  101.  268. 

PLEAS 


INDEX. 

PLEAS  and  PLEADING, 
pleas  in  bar; 

general -issue,  what.  591. 

when  proper  to  be  pleaded.  Id. 
what  may  be  given  in  evidence  under  it; 
in  assumfisit.  Id.  592. 
covenant.  593. 
debt  on  simple  contract.  Id.  594. 

bond,  or  other  specialty.  595. 
record.  596. 
detinue.  Id. 
trespass  to  persons.  597. 

personal  property.  Id. 
real  property.  Id. 
against  justices,  &c.  Id. 
case.  598. 
pleas  amounting  to.  599. 
of  colour; 

implied.  Id.  600. 
express.  600,  1. 
engrossing,  entering  and  delivering.  62 1 . 
need  not  be  signed.  Id. 
waiving.  623. 

withdrawing,  to  plead  it  de  novo.,  with  a  notice  of 

set-off,  &c.  441.  623. 
special  pleas,  when  necessary; 
in  assumfisit.  592,  3. 
covenant.  593. 

debt  on  simple  contract.  593,  4. 
for  rent.  594,  5. 
gui-tam.  594. 
for  a  penalty.  Id. 

on  bond,  or  other  specialty.  595,  6. 
record.  596. 
detinue.  Id.  597. 
trespass.  597. 
trover.  598. 

action  for  words.  Id.  599. 
escape.  599. 
must  in  general  be  signed  and  filed.  622, 
what  pleas  need  not,  but  may  be  delivered.  621,  J. 
origin  and  reason  of  signing  pleas  by  counsel.  622  (r). 
striking  out,  and  giving  general  issue.  623. 
rule  to  abide  by.  439.  623,  4. 

PLEAS 


INDEX. 

PLEAS  and  PLEADING, 
pleas  in  bar; 

single  or  double: 

at  common  law.  608. 
by  4  Ann.  c.  16.  Id.  609. 
determinations  upon  this  statute.  609,  10. 
motion  for,  and  rule  to  plead  several  matters.  441. 

611,  12. 
all  double  pleas  must  be  filed.  622. 
Q:  if  they  must  appear  to  be  pleaded  by  leave  of 

the  court.  612  (b). 
costs  of  double  pleading.  612,  &c. 
in  general,  their  qualities  and  conditions.  404,  &c. 

617,  &c. 
general  pleading,  in  what  cases  allowed.  619. 
conclusions  of.  620. 
what  are  issuable.  428,  9. 
searching  for.  505,  6. 
adding.  441.  624. 
amending.  See  tit.  Afnendments. 
setting  aside.  563,  4.  419.  586.  588. 
replications; 
in  denial;  626. 

of  the  whole  plea.  633. 
a  part  of  it;  Id. 

with  a  traverse:  634. 

what  it  is,  and  when  necessary.  685. 
rules  respecting  it.  Id.  636. 
in  confession  and  avoidance;  637. 
by  matter  precedent.  Id. 
subsequent.  Id. 
by  way  of  estoppel.  626.  637. 
qualities  of.  637. 

may  contain  several  distinct  answers  to  the  plea.  Id.  (i). 
must  be  consistent  with  declaration.  Id. 
departure,  what.  638. 

instances  of:  Id.  639. 

as  to  time  and  place.  639,  40. 
how  taken  advantage  of.  640. 
by  way  of  new-assignment; 

general  nature  of.  Id. 
as  to  time.  Id. 

place.  641,  &c. 

other  circunistances.  643. 

PLEAS 


INDEX. 

PLEAS  ahd  PLEADING, 
replications; 

by  way  of  new-assignment; 

must  be  certain.  643. 
pleas  to.  Id.  644. 
mode  of  concluding.  645. 
conclusions  of.  644,  5. 
when  delivered  or  filed.  645. 
signed.  622  (/?).  645. 
rejoinders,  sur-rejoindei's,  rebutters,  sur-rebutters,  &c.  646. 
amendment  of  pleas,  replications,  &c.  654,  5,  &c.  778. 
plea  or  replication  bad  in  part,  is  bad  in  toto.  647. 
of  nui  tiel  record,  how  concluded.  688. 
replication  to.  Id. 
replication  of  nul  tiel  record.,  how  concluded.  Id. 

rejoinder  to.  689. 
pleas  fiuis  darrein  continuance; 
what.  774.  1047. 

when  and  in  what  cases  pleadable.  774,  5. 
in  abatement;  775,  6.  1047. 
peremptory.  776. 
conclusion  of.  777. 
after  bringing  money  into  court.  568  (m). 
in  bar;  775. 

form  of,  at  the  assizes.  776. 
conclusion  of.  777. 
waiver  of  former  bar.  776. 
must  be  certain.  Id. 
how  restrained.  778. 
proceedings  on.  Id. 
other  pleas  pleadable  at  nisi  firius.  777. 
pleadings  cannot  be  objected  to,  on  demurrer  to  evidence. 

792. 
what  defects  in  pleadings  are  aided  after  verdict,  at  com- 
mon law.  826,  &c. 
what  defects  are  amendable.  See  tit.  jimcndments. 

cured,  as  matter  of  form,  by  statutes  of 
jeofails.  834,  5. 
repleader;  814. 

when  granted.  829. 
rules  respecting.  Id.  830. 
issues  on,  by  whom  made  up.  666. 
how  it  differs  from  u  judgment  n&;i  obstante  veredicto. 

830,  1 . 
PLEAS 


INDEX. 

PLEAS  and  PLEADING, 

pleadings  in  scire  facias.  See  tit.  Scire  Facias. 
error.  See  tit.  Error. 
PLEA-ROLL.  627.  661,  2. 
PLEDGES, 

by  original.  106. 

bill.  401. 
want  of,  aided.  833. 
PLENE  ADMINISTRAVIT, 
plea  of; 

when  it  maybe  pleaded  in  «areytrczas.  1020.  1046. 
need  not  be  signed  or  filed.  622. 
issue  on,  by  whom  made  up.  666. 
evidence  on.  294.  369.  858. 
costs  on  acquittal  of  one  defendant.  90 1 . 
confession  of,  and  judgment  of  assets  guandoy  See.  633. 
scire  facias  on.  1017,  18. 
PLURIES,  Writs  of.  See  tit.  Co.  Sa.  Fieri  Facias,  and  Procets. 
POLLS,  challenging.  See  tit.  Jury. 
POLICY  of  INSURANCE, 
delivering  copy  of.  532,  3. 
actions  on; 

changing  venue  in.  547. 
bringing  money  into  court.  563. 
consolidation-rule,  what.  557. 
history  of.  Id. 

terms  imposed  on  defendant.  Id. 
motion  for  leave  to  take  out  execution,  after  verdict 

forplaintiff.  488,  9.  909. 
in  what  cases  the  verdict  is  conclusive,  and  in  what 

not.  558, 
costs  in.  Id.  570,  I. 

evidence  of  interest,  on  execution  of  inquiry.  523. 
PONE,  or  Si  tefecerit  securum.,  96. 
to  remove  a  replevin  cause; 

what,  and  when  it  lies.  352,  3. 

direction.  353,  4. 

form  of.  Id. 

fee  on  issuing.  97  (t^). 

cause  for,  when  shewn.  355. 

what.  Id. 
effect  of.  356, 

PONE, 


INDEX. 

PONE,  or  Si  tefecerit  securum., 
to  remove  a  replevin  cause ; 

receipt  and  allowance.  Id. 

return ;  < 

when  and  how  made.  Id.  357. 
what  is  good.  357. 
effect  of  filing.  Id. 
when  the  plaint  is  removed  under  it.  358. 
declaration  on ; 
de  novo.  359. 
rule  for.  Id.  436. 
demand  of.  359. 
non-pros.  Id. 
appearance  ; 

rule  for.  Id.  436. 
process  to  compel.  359,  60, 
time  for  pleading.  360. 
subsequent  proceedings.  Id. 
per  vadios,  to  compel  appearance.  Id. 
POPISH  RECUSANCY.  579.  589. 
POSSESSION,  sufficient  against  a  wrong-doer.  396 
POTSEA, 

what.  811. 

when  and  by  whom  entered.  Id. 

stayed  in  officer's  hands.  809. 
form  of; 

on  a  verdict  for  plaintiff.  81 1  (z). 

nonsuit,  or  verdict  for  defendant.  /(/. 
where  a  juror  is  withdrawn.  785  (n). 
new  one  ordered.  811. 
amendment  of.  661,2.  802.811,   12. 
stamping.  841. 
marking.  Id. 

must  be  brought  in,  before  motion  in  arrest  of  judgment, 

&c.  840. 
rule  for  bringing  it  in.  Id. 
POST-OFFICE  Books,  inspecting.  539. 
POST  TERMINUM.  845,6. 
POUNDAGE;  978,  &c. 

levying,  on  stat.  43  G.  III.  c.  46.  §  5.  9 1 1 . 
remedy  for:  980,  1. 

against  the  sheriff,  when  excessive.  Id. 
POWER  of  ATTORNEY, 

to  demand  money  on  award.  760. 
PRAECIPE.  See  tit.  Pr9ces8. 

Vol.  II.  4  E  PRJIMUNIRE 


INDEX. 

PR^MUNIRE.  679. 
PRESCRIPTION.  395. 
PRESUMPTION, 

of  payment  or  release,  in  debt  on  bond.  20,  21. 
PRISONERS, 

jurisdiction  over.  28. 
commencing  actions  against ; 

in  custody  of  the  marshal.  61. 
the  Fleet.  62  (a).  303  (/). 
Exchequer.  62  (a). 
proceedings  against; 

on  a  removal  to  or  from  the  Fleet,  or  prison  of  an  infe- 
rior court: 
before  declaration.  299,  300. 
after  declaration.  301.322,3. 
in  custody  of  the  marshal; 

fees  payable  by.  296  (a),  302. 

on  a  civil  or  criminal  account.  296. 

how  committed  or  removed  to; 

on  the  return  of  ccfd  corfms^  £cc.  Id. 
a  render  in  discharge  of  bail.  Id. 
return  to  a  habeas  corfius.  See  tit.  HabeasCorJius , 
proceedings  against,  previous  to  the  plea; 

by  the  same  plaintiff,  for  the  same  cause  of  action, 
by  bill:  61.  291,2.  303.  303. 

in  vacation.  303. 
original  writ.  Id. 
time   for  declaring,  on  a  removal,  commitment-, 
or  render  in  discharge  of  bail.  304. 
further  time.  326,  7.  362. 
by  the  same  plaintiff,  for  a  different  cause  of  action, 
a  third  person:  Id.  306.  305 

in  term.  307. 

vacation.  Id.  308. 
rule  as  to  detainer.  306  (s).  308. 
time  for  pleading.  308,  9.  420. 
custody  of  the  sheriff,  &c. 
•when  and  how  bailed.  194,  &c. 
treatment  of.  200,  &c. 
proceedings  against,  previous  to  the  plea; 
by  the  same,  or  a  different  plaintiff.  311. 
time  for  declaring.  311,   12,  13. 
further  time.  326,7.  362. 
mode  of  declaring:  313,  14. 

affidavit  of  delivery,  Sec.  314,  15. 

PRISONERS, 


INDEX. 

PRISONERS, 

in  custody  of  the  sheriff,  &c, 

proceedings  against,  previous  to  the  plea  ; 
times  for  appearing,  and  pleading.  315,  16. 
demand  of  pica.  Sec.  317. 
notice  of  filing  plea,  when  necessary.  Id. 
in  custody  of  the  marshal,  or  sheriflT,  fee. 

may  put  in  and  justify  bail  in  vacation.  233. 

cannot  commence  or  prosecute  aclions,\vhenattornies.. 

269,  ro." 

oh  a  criminal  account,  cannot  be  charged  with  a  civil 
action,  without  leave.  306,  7. 
proceedings  against,  subsequent  to  the  plea; 
notice  of  trial  to  turnkey  good.  319.  693. 
times  for  proceeding  to  trial  or  final  judgment,  and 

execution.  318,  19. 
mode  of  proceeding  to  trial  and  final  judgment.  3 1 9, 
charging  in  execution  ;  Id.  20. 

in  the  King's-Bench  prison.  320. 
in  a  county-gaol.  322. 
in  the  Fleet.  Id.  323. 

prison  of  an  inferior  court.  Id. 

new  charge  unncessary,  on  plaintiff's 

death.  323. 

when  and  how  discharged,  for  not  proceeding  in  due 

time.  Sec.  323,  4.  440. 
causes  to  prevent  their  discharge.  326,  7,  8. 
consequences  of  being  superseded,  or  supersedeable. 

328. 
warrants  of  attorney  by.  492,  &c. 
removal  of,  by  habeas  corjius  ad  testijicandum.  739. 
in  execution ; 

treatment  of.  203.  957.  960,  &c. 
removal  of  by  habias  cor/nis,  957. 
when  entitled  to  rules  of  prison.  960. 

day-rules.  961,  2. 
how  relieved  by  insolvent-acts.  962. 
when  entitled  to  benefit  of  lords'-act.  962,  Sec. 
when  and  how  discharged  under  it; 

notice,  petition,  copy  of  causes,  and  afiidavit. 

965,  6cc. 
rule  of  court,  in  town.  966,  7. 
^  country.  967. 

whi  n  brought  into  court.  966,  7. 
examination :  y67. 

interrog^atories.  968,  9. 

PRISONERS, 


JNDEX. 

PRISONERS, 

in  custody  of  the  marshal,  or  sheriff,  8cc. 
in  execution ; 

when  and  how  discharged  under  lords'  act ; 
objections  to  schedule.  969. 
discharge.  967.  970, 
assignment  of  effects.  Id. 
remanding.  968. 
allowance.  969,  &c. 
when   and   how   compelled   to   deliver    up   their 

effects.  971,  &c. 
PRIVILEGE,  625.  696. 

of  parliament.  77.  110,  &c.  170,  1. 
from  arrest; 

personal.  167,  &c. 
local.  188.  264. 
temporary.  189. 
of  attornies,  &c.  171,  2.  264,  &c. 
writ  of.  265. 

when  allowed  against  privilege.  266,  7. 
waiver  of.  267,  8. 
how  pleaded.  47.  172  Qi).  579. 
in  what  time.  418. 


PRIVITY,  of  Contract.  372,  3. 

Estate.  373. 
PROCEDENDO  ;   190,  91.  466.  See  also  tit.  Habeas  Cor/ius, 
what,  and  when  it  lies,  and  when  not.  346,  &c. 

on  a  removal  by  certiorari  or  habeas  corfius.  Id. 

after  return  filed.  348. 
on  a  removal  by  re.  fa.  lo.  &c.  353.  356. 
PROCEEDINGS,  setting  aside  and  staying.    See  tit.  Setting 

aside.)  and  Staying  Proceedings. 
PROCESS, 

attachment,  in  trespass.  78. 
bill  of  Middlesex.  24.  78.  86,  7. 

^^*.     X    bill  of  Middlesex.  78,  9. 
plurics  3 

latilat.  24.  79.  81. 

"^l'^^       \    cahias.  78,  9.  81. 
plunes    3 

non  omittas.  79,  80,  1.  192.  257. 

should  correspond  with  the  previous  process.  80, 

in  Jt'ales  and  the  C'g,nnti' s-Palatine.  85. 

in  what  manner  issued.  80. 

by  whom  signed.  Id. 

■when  sealed.  81. 

PROCESS, 


INDEX. 

PROCESS, 

prxcipe^  &c.  81. 

common;  Id. 

need  not  be  in  a  plea  of  trespass.  3S. 

notice  to  appear  to.    146,  7. 

special;  81. 

ac-etiain:  82.  84. 

on  the  lottery-act.  84. 

against  bail.  Id. 

against  several  defendants.  80. 

direction.  84,  5,  6. 

teste.  Id. 

return.  86,  7. 

indorsementof  the  date.  88,9. 

sum  sworn  to.    145. 

attorney's  name.  89,  90.  271,  2l 

irregularity  in.  90,  1.  147. 

motion  to  quash.  440. 

amendment  of.  83.  91.660. 

by  original; 

summons.  105.    108.  376. 

attachment:  106.  108.  376. 

how  executed.  106. 

testatum  pone  or  attachment.  107. 

distringas:  Id. 

issues.  Id.  108. 

how  far  affected  by  stat.  12  Geo.  I.  c.  29.  Id.  109. 

against  corporations.   109.1)6. 

hundredors.  116,  See. 

peers,  and  members  of  the  House  of  Commons. 

112. 

capias.  122. 

alias  "^ 

pluries  [        ^  .       ,c,«    ^ 

.    ,  ,  >  cajnas.  123,  4. 

testatum         C  ' 

non  omittas  J 

teste  and  return  of.  113.  124, 

amendment  of.  104.  125. 

bailable.  150. 

not  bailable.   146. 

common  or  serviceable:  Id.  (d). 

notice  to  appear  to.  146,  7. 

service  of  copy  of;  Id.  148. 

■*  in  what  cases.    146.  148. 

of  what  process.  146,  7,  8. 

PROCESS, 


1  INDEX. 

PROCESS, 

service  of  copy  of; 
by  whom.  148. 

when.  Id.  v 

where    Id.  149. 
how.  149. 

ag;ainst  husband  and  wife.  Id. 
upon  the  bill  against  members  of  the  House  of  Com- 
in  what  cases  void.   183.  mons.  113,  &cc. 

when  entered  on  a  roll.    1 10. 
contempt  of.  See  tit.  Attachment. 
for  bringing  in  the  jury.  See  tit.  Jury-Preceii. 
of  execution.  See  tit.  Execution. 
error  in,  assignable  in  the  same  court.  1056,  i. 
PROCHEIN-AMY;  See  tit.  Infant. 

liable  for  costs  to  the  plaintiff's  attorney.  72  (a), 
PROCLAMATION,  Writ  of;  128,  &c. 

foreign.  129,  30. 
PROFF.RT  m  Curia.  395.  1024.  1042. 
PROHIBITION, 

when  grantable  the  last  day  of  term.  453. 
issues  in,  may  be  made  up  by  defendant.  682. 
trial  by  proviso  in.  700. 
costs  in.  See  tit.  Costs. 
PROMISES, 
express.  2. 
implied.  3,  4. 
PROMISSORY-NOTES.  See  tit.  Bills  of  Exchange  s^nA  Pro- 
missory JVotes. 
PROTECTION, 
writ  of.  189. 
of  the  king's  debtor;  Id. 
plea  of.  579. 
PROVISO,  Trial  by.  See  tit.  Trials. 

PUIS  DARREIN  CONTINUANCE.    See  tit.   Pleas  and 

Pleading. 
PURCHASERS, 

how  affected  by  judgments.  851.  856,  &c. 
PUTTING  off  TRIALS.  See  tit.  Trials. 

Q 

QUAKER, 

affirmation  by,  to  be  admitted  an  attorney.  45. 
to  hold  to  bail.  154. 

not  sufficient  to  ground  attachment.  761. 

QUAN- 


INDEX. 

QUANTUM  MERUIT,  or  VALEBANT.  3. 
QUARE  IMPEDIT, 

inquiry  of  damages  in.  517. 

by  the  king,  double  plea  not  allowed  in.  610. 

issues  in,  may  be  made  up  by  defendant.  682. 

trial  by  proviso  in.  700. 

damages  in.  SOO. 

costs  in.  See  tit.  Costs. 
QUARTO  DIE  POST.  101. 
QUASHING  Writs  oi  certiorari^  when  allowed  or  not.  335. 

error.  See  lit.  Error. 
QUI-TAM  ACTIONS.  See  tit.  Penal  actions. 
QUO-MINUS  CAPIAS.  62  (a). 
QUO  WARRANTO.  611.  838,  9. 

R. 

RAVISHMENT  of  Ward.  1061. 
REAL  ACTIONS;  1. 
damages  in.  799. 
costs  of.  See  tit.  Costa, 
scire  facias  in.  1000. 
REBUTTERS.  See  tit.  Fleas  and  Pleading. 
RECAPTION.  190.  311. 
RECOGNISANCE, 
what.  984. 
at  common  law:  Id. 

to  the  kingor'a  subject.  Id. 
before  whom  acknowledged:  Id. 

in  London.  Id, 
must  be  inroUed.  985. 
of  bail, 
•  in  the  action; 

by  bill.  219,  20.992. 
original:  220.  992. 

to  reverse  an  outlawry,  142. 
entry  of;  233. 

by  whom,  when,  and  how  made.  Id. 
proceedings  on:  See  tit.  ^a//and  ScireFacias. 
staying.  474,  5. 
■*i>  error;  991,  2.  998.  1075,6. 
in  what  sum.  J  08 5. 

Avhen  the  party  must  join  in  it.  Id.  1086. 
when  not.  1086  (/). 
form  of, 

in  the  Common-Pleas.  1086. 
King's-Bench.  Id. 

RECOG- 


INDEX. 

RECOGNISANCE, 

of  bail  in  error; 

proceedings  on.  See  tit.  Bail  and  Scire  Facias, 
by  statute; 

on  a  statute-merchant.  985,  6. 

staple.  945.  986. 
in  nature  of  a  statute-staple.  987,  8. 
from  what  time  it  binds  the  landj 
at  common  law.  989. 
by  the  statute  of  frauds.  Id. 
registering,  in  Middlesex  and  Yorkshire.  862.  990. 
RECOGNISANCE-ROLL.  233. 
RECORD;  See  tit.  A'ul  del  Record. 

of  J^'isi  Prius.  See  tit.  .^isi  Prius. 
when  removed  or  not,  on  a  certiorari  or  habeas  cor* 

tiu8.  341.  349.  691,2. 
RECORDARI  FACIAS  LOQUELAM, 
what,  and  when  it  lies.  352.  354.  1139. 
direction.  354. 
form  of.  Id. 
fee  on  issuing  97  (x»). 
cause  for,  when  sI1e^vn.  355. 

what.  Id. 
effect  of.  356. 
receipt  and  allowance.  Id. 
return; 

when  and  how  made.  Id.  357 . 
what  is  good.  357. 
effect  of  filing.  Id. 
when  the  plaint  is  removed  under  it.  358; 
declaration  on; 

de  iiovo.  359.  • 

rule  for.  Id.  436. 
demand  of.  359. 
nou-firos.  Id. 
appearance; 

rule  for.  Id.  436. 
process  to  compel.  359,  60. 
time  for  pleading.  360. 
subsequent  proceedings.  Id. 
RECOVERY, 

for  the  same  cause,  when  pleaded  or  given  in  evidenfce;. 

592.  594.  596.  598. 
scire  facias  on  error  to  I'e  verse.  1034.  1 116. 
RE-DISSEISIN,  damages  on  writ  of.  799. 
RE-EXTENT.  950,  l,  2. 

REFERENCE; 


INDEX. 

REFERENCE;  See  tit.  Arbitration. 

how  far  a  stay  of  proceedings.  470.  748. 
effect  of  agreement  to  refer.  748. 
to  the  master.  485.  514,  15. 
REGISTERING  JUDGMENTS.  See  tit.  Judgments, 
REJOINDERS.  See  tit.  Pleas  and  Pleading. 
RELEASE, 

when  presumed  in  debt  on  bond.  2 1 . 
when   pleaded  or  given  in  evidence:  592,  3.  596,  &c. 

1044.  1046,7. 
after  the  last  continuance.  775,  6.  1047. 
of  actions,  a  bar  to  a  scire  facias.  982. 

errors,  plea  of.  1034.  1062.  1111.  1115,  16.  1119,20,  1. 
RELICTA  VERIFICATIONE.  See  tit.  Cognovit  Actionejn. 
REMANETS;  699.  735.  773. 

costs  on.  See  tit.  Costs. 
REMITTITUR  of  Damages.  805. 

Record,  when  necessary.  11 35,  6. 
RENDER.  See  tit.  Bail. 
RENT, 

staying  proceedings  on  payment  of.  482.  486,  7. 
payable  under  an  execution.  925,  8tc. 
RENT-CHARGE,  extendible  on  elegit.  939. 

SECK,  not  extendible.  940. 
REPLEADER.  See  tit.  Pleas  and  Pleading. 
REPLEVIN,  376. 
action  of;  7. 

limitation  of.  15. 

an  action  within  the  24  G.  II.  c.  44.  §  6.  75,  6. 

not  within  the  statute  27  Eliz.  c.  8.  1061. 

staying  proceedings  in.  488,  9. 

set-off  not  allowed  in.  603,  4. 

avowant  in,  cannot  discontinue.  629. 

move  for  judgment  as  in  case  of  a 
nonsuit.  703. 
issues  in,  may  be  made  up  by  defendant.  682. 
trial  by  proviso  in.  700, 
finding  of  jury  in.  798  (/2). 
judgment  in.  842,  3. 
damages  in.  516,  17.798. 
costs  in  :  See  tit.  Costs. 

of  double  pleading.  615,  16,  17. 
execution  in.  911. 
REPLICATIONS.  See  tit.  Pleas  and  Pleading. 

Vol.  II.  4  r  REPORT. 


INDEX. 

REPOK T.  See  tit.  Master's  Rejiort. 

REQUEST,  when  necessary  to  be  specially  alleged.  o87. 

RESCOUS,  not  within  the  statute  27  Eliz.  c.  8.  1061. 

RESCUE, 

when  the  sheriff  may  return  it.  208.  255. 
when  not.  208. 

plaintiff's  remedy  thereon.  Id.  209.239.437.  960. 
fine,  Sec.  209. 
RESIDENCE,  of  Plaintiff,  calling  for.  476,  7. 
RESPONDEAT  OUSTER;  See  tit.  Abatement. 

judgment  of,  in  what  cases.  588,  9. 
RESTrrUTION,  on  Outlawry.  133,  4.  143. 

reversing  or  setting  aside  judgment.  936, 

7.  1137,  8. 
RESUMMONS.  1118. 
RETRAXIT.  841. 
RETURN-DAYS  of  Writs; 
general.  99. 
by  original.  100. 
bill.  86,  7. 
RETURNS  to  Writs; 

mesne.  91,  2.  255,  6.  200. 
final.    See  tit.  Execution. 
o{  certiorari  or  habeas  corfius.  341. 
recordari facias  loquelam.,  &c.  356,  7 .■ 
scirejacias.  See  tit.  Scire  Facias, 
error.  1090,  91.  1097,8. 
certiorari.  1112,  13. 
REVERSION,  extendible  on  elegit.  939. 
REVOCATION,  of  power  of  Arbitrators.  748,  9. 
RIENS  e?i  arrere,  plea  of.  595. 

per  discent.  854,  5. 
RIGHT,  Writ  of,  no  damages  in.  799. 
RIOT-ACT;  116.  119. 

execution  on.  120,  1. 
ROLL  of  Attornies;  46,  7. 

strikhig  off  attornies  from.  60. 
ROLLS.  See  tit.  Issue-roll  and  Judgment -roll. 
ROMAN-CATHOLIC  Attornies, 

oath  by.  45. 
RULES  and  ORDERS, 
general; 

ol  Elizabeth^  6  &  7.  M.  1564.  C.  P.  Error.  1074,  5. 
^  9.  E.  1567.  C.  P.  Attornies.  35. 

15.  M.  1573.  C.  P.  Attornies.  Id. 

RULES 


INDEX. 

RULES  and  ORDERS, 

general; 

oi Elizabeth,  23.  E.  1581.  C.  P.  Error.  1074,  5 
24.  T.  1582.  C.  P.  Attornics.  35. 
James  I.  2.  T.  1604.  §  1.  Filing  Pleas.  622. 

§  2.  Marking  Postea.  841. 
3.  H.  1605.  Motions.,  Ruks.  461. 

5.  H.  1607.  Bringing  mo7ieyinto  court.  561. 

566. 

6.  E.  1608.  Return  of  Latitat^  Sec.  91. 

7.  M.  1609.  Mtice  of  Bail.  222. 

13.  E.  1615.  Record  of  A'^isiPrius.,  Marshal's 

fees.  773. 
17.  E.  1619.  Docketing  Judgments.  859. 

19.  H.  1621,  Wales,  Judicial  Writs.  929. 
Charles  I.    11.  E.  1635.  Certiorari,  Error.  1115. 

14.  H.  1638.  Habeas  Corfius,  Prisoners.  oO'Z.- 
17.  M.  1641.Z)(?77Zurrfr-5oo.('s,&:c.686.1 123. 

20.  T.  J  644.  Clerk  of  the  Errors.  1070. 

21.  T.  1645.  Sheriff  of  Chester,  Return  of 

Writs.  85. 

M,  J\,"otice  of  Bail.  222. 

H.  — — —  Sheriffs  and  their  Deputies.  33., 
23.  E.  1647.  Under-sheriffs.  Id, 
H Filing  Bail-iiiece.  223. 

1649.  H.  §  2.  Entering  Issue.  714. 

1650.  H.  §  3.  Filing  Bail-fiiece.  232. 

1651.  E.  Summomng  Juries.  724. 

M.  Bail,  Habeas  Coriius,  JVotice  of  Trial.   343, 

702. 
1654.  M.  §  1.  Attornics,  Bail,  Sheriff's  Deputies.  33. 

36.  54.  57.  230.260. 
§  2.  Sheriffs,  Bailiffs,  Warrant  to  arrest .  33. 

192. 
§  4,  Attotnties.  36. 
§  5.  Venue.  426.  545.  549.  552. 
§  6.  Bail,  Undertaking  to  afijiear.  199. 
§  7,  8.  Bail,  Habeas  Corfms,   Procedendo. 
222.  299,  300,  301.  322.  336.  342,  3, 

4,  5,  6. 

§  9.  Bail,  Habeas-Corfius,  Venue,  Attornics. 

152.  211.272.342.  351. 

§  10.  Afificarance,  Attornics,  Undertaking  to 

afifiear.  58.  64.213, 

§  1  l,//a(!»ea5-CWw«,Pmo«fr*.297.304.309. 

RULES 


INDEX. 

RULES  and  ORDERS, 
general ; 

of  1654.  M.  §  12.  Declaration  by  Original.  377. 

§  13.  Prisoners,  Amendment.  303.  654. 

§  14.  Bolls.  844. 

§  14,    15.  C.  P.  Declaration,  A'onfiros.  364. 

§  15.  Declaration,  Imparlance.  Id.  420. 

§  17.  Demurrers,  jimendment.  648.  651 

§  18.  Kotice  of  Trial,  Costs.  698,  9. 

§  20.  Special  Verdicts.  807. 

§21.    Venire  de  fiovo.  831. 

I  22.  Habeas  Corpus,  Costs.  352. 

1656.  E.  Attornies.  57. 

T.  §  1.  Sealing  and  signing  Writs.  33.  81. 
§  2.  Clerk  oj'  the  Treasury.  31. 

1657.  E.  §  1.  Docketing  Judgments.  859. 

§  2.  Cojnmon  Bail.  215. 
§  3.  Entering  Issue.  714. 
H.  Entry  of  Pleadings,  &c.  681.  845. 

1658.  E.  Special  Causes.  459. 

1659.  E.  Sealing  and  Signing  Writs,  33.  914. 
CAar/es  II.  13.  T.  1661.  Special  Bail.  223. 

M. Sealing  Writs.  33. 

14.  E.  1662.  Attornies.  57. 

T. §  1.     Common  Bail,  Ejectment. 

211 
Attornies.  57. 
C.  P.  Prisoners.  303. 
Attornies.  57, 
,   Trial  at  Bar.  771. 
§  1 .  Sealingandsigning  Writs.35 
§  2.    Warrant  of  attorney.  492 
§  3.  Clerks,  Secondary.  844. 
§  4.  Sheriff^ s     Deputies     and 
Warrant.  33.  192. 
T.  — —  §  2.    Sealing    Record   of  JVisi 

Prius.  713. 

M. §  \.  Additionsin Affidavits. \55. 

^'2.  Ac-etiam,  Arrest.  83.  172. 
184. 
§  3.  Clerk  of  Declarations. 274,5. 
15  &  16  H.  §  1.   Clerks,   Secondary.  844. 

§  2.    Issues,     Trial,     Eritering 
Causes.  704.  713.  772. 
16.  E.  1664.  §  1.  Prisoners.  325. 
§  2.  .Error.  1084. 

RULES 


INDEX. 


RULES  and  ORDERS, 

general; 

of  Charles  II. 


James  II. 


25 
28 


29 


31 


iVUUamiS  Mary.     1.  H 


16.  T.  1664.  Filing  Pleas.  622. 

M. Bailf    Habeas-Corfms . 

222.  224.  345. 

18.  E.  1666.  Signing  Pleas,  8cc.  622. 

669.  686.  1123. 

19.  E.  1667.  Clerk   of  Declarations. 

274>,5. 

20.  T.  1668.  Clerks,  Secondary.  844. 
20  &  21.  H.  Issues^  Trial.  704.  713. 
22.  T.  1670.   Sfiecial  Bail.  234. 

H.  1672.  Sealing  Writs.  32. 
T.    &  M.  C.  P.    1676.    Error. 
1071.1084.  1090.  1093. 
M.  Esca/ie.,  Prisoners.  299. 

E.    1677.    Bail,   Habeas-Corfius. 
343. 
H.  1678.  Filazers,  Signing  Writs . 

31. 
E.  1679.  Filazers,  Signing  Writs. 

Id. 

T.      ■-  ■  Sealing  Record  of  Alisi- 

Prius.712. 

1680.  Sealing    Writs.  33. 

1681.  Co/lies   of  Error,   &c. 
1124. 

Common-Bail,  Ejectment. 

211. 

1684.  Error.    1070,  1.  1084. 

1685.    Record  of  Msi-Prius, 

Rolls.  713,  14. 

—  Demzirrer-Books,  &c. 

460.  685,  6,7.  1123. 

H.    1686.   Bail,     Habeas-Corfius . 

342. 
H.  1687.  Pau/ier.  67,  8. 
1688.    Warrants  of  Attorney, 
Issue-Roll.  66.  681. 
1689.    Common-Bail,     Judg- 
ment on  Warrant  of  Attorney,  &c. 

211. 
2.  M.  1690.  Filing  Pleas.   622. 
4.  T.  1692.  §    1.    Ajlifiearance,  Pro- 
cess. 210. 

§  2.  Common-Bail.   211. 

RULES 


32.  E. 

33.  E. 

M. 

36.  E. 
l.T. 

2.  E. 


3  8c  4. 
4.  E. 


INDEX.. 


RULES  and  ORDERS, 

general; 

of  William  iJf  Mary. 


miliam  III. 


Anne. 


Ai.  T.  1692.  §  3.  Sealing  Writs.  33. 

5.  E.  1693.  §  1.  Bringing  in  Rolls. 

845. 

.    ■  §  3.  Prisoners.  309.  312, 
13,  14,  15,  16,  17.  324. 

M. Bailin  Error.  1087. 

H. Habeas-Corfius,  Prison- 
ers. 303. 

6.  H.  1694.  Fines.  275. 
8.T.  1696.  §  1.  Alias  Scire  Facias, 

1039. 
— —  §  2.  Sfiecial-Juries.  726. 
729.  771. 
»  §  3.  Bail  by  Commission- 

ers, Habeas-Corfins . 
220,   1.    224.    227. 
344. 
1697.  Bringing  in  Rolls.  845. 
Prisoners,  Common  Bail. 
326. 
Bringing  in  Rolls.  Id. 
Bringing  in  Rolls.  Id. 
1698.    Bail,  Habeas-Corfms. 
343. 
11. E.  1699. §  1.  Enteri?7g  Demurrer. 

682,  3. 
.  §  2.  Sfiecial  Bail,  Con- 

dnuance-Day.  217.  232. 
1700.  §  2.  Declaration,  Issue- 
Money.  406,  7,  8.  678. 
1702.  §  I.  Bail,  Render.  237. 

§  2 .  Aotice  of  Render, 

Prisoners.  241.  304. 
,  T.  1704.  Bail,  Render.  239. 
M.  ■  Attornies.  36. 

,  M.  1 705.  Abifzce  0/  Trm/.  697. 
E.  \706.  Im/iarlancc:  418. 

M. §  1.  Entering  Issue, 

Record  of  Msi-Prius, 
Bringing   in    Rolls. 
682.713,  14.844,5. 
»  §  2.  Warrants  of  At- 

torney. 65,  6.  406. 
RULES 


12.  T. 


I.E. 


INDEX. 


RULES  and  ORDERS, 

general; 

oiAmie.       5.  M.  1706.  §  3.  Time  for  pleading .  420. 

6.  T.  1707.  Prisoners^  Rcca/Uion.  311  (^j). 
8.M.  1709.  §  1.  Sfiecial-JSail.  217. 

§  2.  Exception  to  Bail.  224, 

9.  H.  1710.  C.  P.  Declaration.  365. 
George  I.     2.  T.  1716.  Prisoners.  304.  312.  318.  324. 

7.  E.  1 72 1 .  Sealing  Record  ofMsi-Prius.  713. 

8.  H. jVotice  of  Inquiry.  520.  694. 

E.  1722.  C.  P.  Prisoners.  311. 

ll.T.  1724.  Declaration.  406  (z). 

M dttornies.  57. 

QeorgeW.   l.M.  1727.  §  2.  C.  P.  Demand  of  Declara- 
tion. 365. 
T.  ■■■■        Declaration^  Rule  to  filead^  De- 
mand of  Plea.  406.  408.  431,  2. 

2.  T.  1728.  Declaration.  406,  7,  8. 

H. §  1.  Time  for  pleading.  420. 

§1,2.  Ac-etiam.  83. 

§  3.  Signing  Judgment.  431. 

11..1729.  Exception  to BailbyOi'iginal. 224. 

3.  M. Prisoners.  296. 

4.  Dec.  17.  1730.  Prisoners.  Id. 

E.  1731.  Warrants  of  Attorney.  492,  3. 
5.E.  1732.  §  1,  2.  .SazV.  224,  5.  235. 

§  3.  Scirc-Facias.  1039,  40. 

5  8c  6.  T. §  1.  Time  for  pleading .  421. 

§  2.  /??//^  to  return   Writ.,  and 

bring  in  Body.  253,  4.  258. 

6.  M.  §2.  C.  P.  Exception  to   Bail. 

245. 
§  6.  C.  P.  Bail  in  Error.  1087. 

8.  H.  1734.  §  1.  C.V.  Prisoners.  303. 

§2.C.  P.     Arrest,     Priso7iers. 
186,  7. 

9.  M.  1735.  Filing  Affidavits.  454. 

10.  M.  1736.  §  1.  Bail-piece,   Declaration   by 
the  bye.  215.  365. 

§  2,  Declaration  dc    bene    esse, 

Time  for  pleading.  410,  11.  423. 

§  3.  Copy   of  Declaration.    408. 

10  8c  1  l.T.  1737.  Entering  Causes.  773. 
11&I2.T.  1738.  Rolls.  68\. 
!3.  E.  1740.§  1,  C.    P.    Affidavits,    Commis- 
sioners. 15  5. 
RULES 


INDEX. 

RULES  and  ORDERS, 

general; 

oi  George  II.  14.  M.  1740,  §  1.  Attornies,  Bail.  230. 

§  2.  Sheriff's  Officer,  Bail.  Id. 

H.  Entry  and  Trial  of  Causes. 

773,4. 

15.  E.  1742.  §  1.  Jc-etiam.  84.  404.  995. 

■  §  2 .  Affidavits  f  Cornmissioners . 

155. 

■  ■       §  3.  DeclaratioJiy  Prisoners. 

29.  290.  308. 

17.  M.  1743.  Entry  and  Trial  of  Causes. 

773,  4. 
20,11.  \7 16.  Attachment      of     Privilege. 

271,2. 
3d  Afir.  1747.  Sealing  Blank-Writs.  33. 
26  &  27.  T.  1753.  in  Scac.  Bail  in  Error. 
1084.  1087  (0. 
30.  M.  1756.  §  1.  Enlarged  Rules.  460. 

§  2.  Entering   and    arguing 

Special-Causes.  459,  60. 

32.  &  33.  T.  1759.  High-Bar-Money .  463. 

33.  E.  1760.  in  Scac.  Bait  in  Error.  1085. 
George  III.      6.  H.  1766.  Enlarged-Rules.  460. 

T. Rule  to  return  Writ y  and  bring 

in  Body.  253.  258. 

8,  H.  1768.  Abode  of  Attomies,  Service  of 

Mtices,  &c.  47,  8. 

E. Bailf     Render,     Commit7nent . 

240. 
15.  H.  1775.  Enlarged-Rules.  460. 
17.  M.  1776.  Enlarged-Rules.  Id. 

T.  1777.  Attachment.  149.  437. 
19.  T.  1779.  Oyer  of  Original- Writ.  529, 30. 

22.  H.  1782.  C.  P.  Bail,  Venue.  375. 

T. Declaration,   Time  for  plead- 
ing. 410,  11.  423. 

23.  M. Original-Writ,  Costs.  95. 

H.  1783.  Writ  of  Inquiry.  532, 

26.  H.  1786.  Prisone?-s.  304.  313,  14.  318, 

19.324.328. 
28.  E.  1788.  Justifying  Bail.  228. 
30.E.  1790.§  1.    Short    Mtice    of  Trial. 

429.  697. 

= ~  §  2.    Rules     of  KiTig's-BeJich 

Prison.  960. 
RULES 


INDEX. 

RULES  and  ORDERS, 

general; 

of  George  III.  30.  E.  1790.  §  3.  Day-rules.  961. 

§  4.  Bail-pieces.  213. 

T.  — —  §  1.  Writs .fCustoS' Br evium. 

255. 

— —  §  2.  The/   6z/  Sfiecial-Jury . 

729.  774. 

."Jl,  M ^2.  Bringing   Money   into 

Court.  569, 

E.  1 79  1 .  Affidavits  of  illiterate  Per-- 

sons.  451. 

T.      ■  '  ■■  §  1 .  Sheriffs  Rule  to  bring  in 

Body.  260,  K 

§  2.  Jttornies,  41,  2.  44. 

32.  M. Sheriffs   Returning    WritSy 

Attachment.  255. 
H.  1792.  §  1.  Attendance  on  Master. 

57.286. 
§  2.  EnteringCauses. 77 3(v). 

33.  E.  1793.  §  \  .Resealing Distringas  and 

Record  of  Msi-Prius.7  \4, 
722.  824. 
■  §   2.    Compounding  Penal- 

Actions.  502. 
§  1.  Bail.  235. 
§  2.  Attornies.  44. 
Interrogatories  on  Attach- 
ment, 59. 

Seal-Office.  32. 

H.  1794.  Perem/itories.  59: 
— — —  Enteritig  Causes.  77 o. 

35.  H.  1795.  Issue-Money.  679. 

E.  i?w/(?e  o/King's-B'tich  Pri- 
son. 960. 

T.  §  1.  Midsummer-Day.  87. 

— —  §  2.  Attendance  on  Judge's 
Su?nmons.  427. 
§  3.  Justifying  Bull.  228. 

36.  M. §  1.  Filing  Affidavits.  455. 

§  2.  Justifying  Biil.  232. 

§  3.  Issue-Money.  679. 

—  §  4.  /?«/e  to  set  aside  Award . 

452. 
H.  1796.  §  1.  Affidavits  on  Motions. 

450. 
RULES 
Vol.  IL  4  G 


INDEX. 

RULES  and  ORDERS 

general; 

of  George  III 

36 

.H. 

1796. 

§  2.  Enlarged-Rules.  460. 

E. 

Insolvent-Debtors.  969. 

T. 

Rules  of  King's-Bench  Pri" 
son.  960, 

37. 

M. 

Affidavits  by  several  Defio- 
nents.  451,  2, 
Costs  on  Motions.  458. 
Day-Rules.  962. 

H. 

1797. 

Insolvent-Debtors.  967. 

38. 

M. 

Intitling  Affidavits.  155,  6. 
Special-Cases.  A&O  (o).  809. 

H. 

1798 

.  Demurrer-Books.  460.  686. 
1123. 

40. 

T. 

1799. 

Pc/ier-5oo/ts.460. 687.1 123. 

41.  M,  1800.iSerwceo//?«/es,&c.49.454. 
E.  1801.  Prisoners,  Committitur.  321, 

■  Peremfitories.  461. 

42.  M.  ■  Warrant  of  Attorney,  Defea- 

zance.  491.  500, 
H.  1802.  C.  P.  Days  for  Arguments.  ^ 

459. 

T. Annuity.  449  (y). 

particular; 

on  the  crown  side: 

to  answer  the  matters  of  an  affidavit.  59. 
for  an  attachment.  437,  8.  452. 
what  may  or  may  not  be  moved  for  on  the  last  day 

of  term.  452,  3- 
on  the  plea-side: 

given  by  the  master; 
to  declare.  364,  5. 
reply.  625,  6. 
rejoin,  surrejoin,  See.  646. 
enter  the  issue.  680.  682.  701. 
produce  the  record.  690. 
for  a  trial  by  proviso.  701,  2. 
given  by  the  filazer; 

to  appear  to  21. pone  or  recordari,  &c.  359. 

declare,  on  a  removal  by /w/ze  or reco7-dari,  held. 
given  by  the  clerk  of  the  papers; 

to  return  the  paper-book.  676. 

RULES 


INDEX. 

RULES  and  ORDERS, 
particular ; 

on  the  plea-side : 
given  by  the  clerk  of  the  errors ; 

for  better  bail.  1087. 
to  certify  the  record.  1088,  9. 
allege  diminution.  1104,  5. 
assign  errors.  1 105,  6. 
given  by  the  clerk  of  the  rules; 
as  a  matter  of  course: 

to  plead.  430,  1.  436.  646.  654,  1041. 
for  judgment; 
when  necessary  to  be  given: 
on  inquiry.  523. 
nul-tiel-record.  692. 
posteas.  436.  813. 
scire  facias.  4:36,  1040.  1102. 
when  not  necessary: 

on  final  judgment  by  default.  5  13. 
demurrer.  687. 
side-bar  rules: 

for  the  sheriffto  return  the  writ.252,3,4. 436.  928. 
bring  in  the  body.  257,  8,  9.  436. 
time,  or  further  time  to  declare.  361,  2.  436. 
to  discontinue.  628. 

be  present  at  taxing  costs.  436. 
pay  money  into  court,  in  C.  P.  565  (J). 
for  a  scire  facias  to  revive  a  judgment,  under  ten 
but  above  seven  years  old.  436,  7.  439  (o). 

1007. 
cannot  be  had  the  last  day  of  term.  452,  3. 
obtained  on  the  motion,  or  signature  of  counsel; 
where  an  action  is  depending: 

on  behalf  of  the  plaintiff.  438,  8cc. 

defendant.  440,  $cc.  1048. 
in  ejectment.  442,  &c. 
where  no  action  is  depending: 

to  set  aside  annuity.  445,  &c. 
absolute  in  the  first  instance:  436,  &c. 

requiring  only  counsel's  signature.  437  (g), 

&c. 
by  consent.  Id. 
to  shew  cause:  436,  &c. 
drawing  up.  453.  457. 
service  of.  47,  8,  453,  4. 
how  far  a  stay  of  proceedings.  248,  9.  449. 

454. 
RULES 


INDEX. 

RULES  and  ORDERS, 

particular; 

on  the  plea-side: 

obtained  on  the  motion,  or  signature  of  counsel; 
shewing  cause  against.  454. 
making  absolute.  455. 
standing  over.  Id. 
enlarging.  456.  460,  1. 
reviving.  455,  6. 
amending.  461. 
/  opening.  Id. 

not  to  be   moved  for  contrary  to  a  former 

rule.  Id. 
when  appointed  for  particular  days.  459. 
brought  on  peremptorily.  59, 60.  460, 1 . 
costs  of.  457,  8. 
not  records.  437. 
evidence  of.  Id. 
RULES  of  the  King^'s-Bench-Prison;  960. 
limits  of.  Id. 
■when  grantable.  Id. 
when  not.  Id.  961. 

S. 

SATISFACTION;  See  tit.  Accord  and  Satisfactioti. 
by  levy  on  fieri  facias.  937. 

taking  the  body  on  ca.  sa.  957,  8. 
entry  of.  845.  981. 
SCANDALUM  MAGNATUM.  547.  1061. 
SCIENDUM.  712. 
SCIRE  FACIAS, 
what.  982. 

its  general  nature.  Id.  983. 
to  recover  an  outlaw's  debts.  136. 

obtain  execution.  982,  Sec. 
for  other  purposes.  143.936,7.982.1034.  1116.1137 
not  within  the  stat.  27  FMz.  c.  8.  1061,  2. 

statutes  of  limitation.  17. 
on  a  recognisance;  983. 
at  common-law:  984. 

against  bail  in  the  action;  471.  991. 
when  it  lies.  991,  2. 

a  personal  action  within  the  stat.  16  £c  17  Car.  II, 

c.  8.  1082. 
out  of  what  court  it  issues.  996. 
^vhen  it  may  be  commenced.  994. 

SCIRE- 


I 


INDEX. 

SCIRE-FACIAS, 

on  a  recognisance; 
at  common  law: 

form  of.  996,  7. 

not  within  the  stat.  27  Eliz.  c.  8.  1061,  2. 
need  not  be  entered  in  sheriff's  book,  if  filed  in 

time.  1040, 
against  bail  in  error;  998. 

out  of  what  court  it  issues.  Id. 
by  whom  made  out.  999. 
form  of.  Id. 
by  statute: 

after  a  year.  990, 

death  of  conusee.  991. 
eviction.  941,  2.  951, 
on  a  judgment;  983. 

by  and  against  the  same  parties: 
after  a  year  and  a  day.  999. 
history  of,  and  when  necessary ; 
in  real  actions.  1000. 
personal  actions.  1001. 
ejectment.  1002. 
after  interlocutory  judgment.  1003. 
former  scire  facias.  1009. 
error.  Append.  Chap.  XLII.  §  43,  &c. 
year,  how  computed.  1003. 
when  not  necessary; 

in  the  case  of  the  king.  1004. 
upon  outlawry  after  judgment.  131. 
after  execution  taken  out  within  the  year.  1004. 
defendant  is  charged  in  execution.  323. 
stay  of  execution  by  agreement.  504,  5.  909. 

1005. 
error.  1005,  6. 
injunction.   1006. 
out  of  what  court  it  issues.  1007. 
rule  or  motion  for.  436,  7.  439  (o).  1007. 
form  of:    1007,  8. 

upon  the  judgment  of  an  inferior  court.  351,  2. 
in  error;   See  tit.  Error.  1008,  9. 

cjiiarc  executioncm  non.  1009,  10.  1097.  1100,  Sec. 
ad  audieJidum  errores.  1097.  1108.  1115,  16.  1141. 
firocessum  et  recordum.  1034.  1116. 
after  non/iros  on  writ  of  false-judgment.  912. 
for  demands  arising  after  judgment; 
in  covenant.  1010. 
annuity.  Id. 

SCIRE- 


INDEX. 

SCIRE-FACIAS, 

on  a  judgment; 

by  and  against  the  same  parties: 
for  demands  arising  after  judgment; 
in  debt  on  bond,  for  payment  of  an  annuity.  1011, 12. 

money  by  instalments. 
1012. 
performance  of  covenants.  Id. 
to  have  execution  of  future  effects;   1000. 
of  bankrupts.  1013,  &c. 
insolvent-debtors.  1016,  17. 
against  executors  or  administrators  ; 

on  a  judgment  of  assets  guando  accidermt.  1017, 

18,  19. 
de  bonis  fir ofiriis:    1000.  1017,  19,  20. 
scire  fieri  inquiry.  933.  1020. 
upon  a  change  of  parties:  1021. 
by  marriage.  Jd. 

banki-uptcy.  849.   1023. 
death:   1024. 

of  a  sole  plaintiff  or  defendant; 

between  verdict  and  judgment.  847.  1024. 
after  interlocutory,  and  before  final  judgment. 

848.  1025,  &c. 
of  one  of  several  plaintiffs  or  defendants; 
pending  the  suit.  1027. 
after  judgment.  1028,  9. 
of  one  plaintiff  or  defendant; 
after  final  judgment, 

by  or  against  personal  representatives: 

1029,  Sec. 
form  of.  1031,  2. 
by  an  administrator  de  bonis  non.  1030, 3 1 . 
against  heirs  and  tertenants;  1032,  3. 
on  the  death  of  one  of  several  defend- 
ants. 1033. 
form  of    1034. 
against  tenenants;  Id. 
in  error,  to  reverse  a  fine  or  recovery. 

Id. 
generally:  Id.  1035. 

where  brought.  1035,  6. 
teste  and  return.  1036. 
not  amendable.  Id.  1037. 
summons.   1037. 
sheriff's  return; 
scire-fieci,  1038. 

SCIRE- 


INDEX. 

SCIRE-FACIAS, 

generally: 

sheriff's  return; 

nihil  habet.  1038. 

scire  feci  to  one,  and  nihil  habet  to  another.  Id. 
against  heirs  and  tertenants.  Id. 
alias;  Id. 

teste  and  return,  1039. 
rule  to  appear.  436.  1040. 
judgment  by  default.  1040. 
entry  of  proceedings.  1041. 
appearance.  Id. 
declaration;  Id.  1042. 
on  a  recognisance.  Id. 
judgment.  Id. 
staying  proceedings  in,  pending  error; 
against  principal.  470. 
bail.  474. 
pleas; 
in  abatement.  1034.  1043. 
bar; 

by  bail.  1044,  5. 
on  a  judgment.  1046. 
must  be  delivered.  622. 
demurrers:   Id.  1047. 

must  be  delivered.  622, 
issues:  1047. 

by  whom  made  up.  666. 
relief  on,  by  audita  querela.,  See.  1047,  8. 
after  scire-feci.  Id. 
two  nihils.  Id. 
damages  and  costs:  798.  1076.  See  tit.  Contn. 

judgment  reversed  for.  1 129, 
execution.  1040,  41. 
SCIRE-FACIAS  Book,  what.  1040. 
SCIRE-FIERI-Inquiry.  933.  1020. 
SCOTLAND, 

within  the  statute  of  limitations.  18. 

affidavits  sworn  in.  156. 

privilege  of  peers  of,  from  arrest.  169,  70. 

sequestration  in,  no  bar  to  an  arrest.  1 8 1  (u). 

plaintiff  residing  in,  must  give  security  for  costs.  47iB. 

error  from.  1063. 

seal-offk:e, 

when  open.  32. 
holidays  at.  33. 

SEAMEN. 


INDEX. 


SEAMEN, 

limitalion  of  actions  for  wages  of.  17. 
arrest  of.    175,  6,  Sec. 
SEARCHING  for  Pleas.  505,  6. 
SEATS  in  Churches 

actions  for  disturbance  of:  397. 
evidence  in.  Id. 
SECONDARY;  30. 

when  the  clerks  anciently  accounted  with  him.  844  (j/), 
SECURITY  for  Costs.  476,  7,  &c. 

Prisoner's  allowance.  970, 1. 
SEQUESTRATION,  Process  of.  931,  2,  3. 
in  Scotland.,  no  bar  to  an  arrest.  181  (m). 
SERVICE, 

under  articles  of  clerkship.  See  tit.  Attomies. 
of  process.  See  tit.  Proceas. 
notices,  Sec.  47,  8,  9. 
rules.  48,  9.  453,  4. 
declaration  in  ejectment.  442,  3,  &c. 
allowance  of  writ  of  error.  1070. 
SESSIONS;  37. 

books  of.   See  tit.  Inspecting  Books,  &c. 
attorney's  bill  taxable,  for  business  done  at.  282. 
SETT  OFF, 

at  common-law.  601. 

by  statutes.  602,  3. 

in  what  actions  allowed.  603. 

in  what  not.  603,  4. 

cannot  be  of  a  penalty.  604. 

general  damages.  Id. 

debt  barred  by  the  statute  of  limitations.  Id. 
debts  must  be  mutual,  and  due  in  same  right:  Id. 
cases  of  partners.  Id.  605. 

husband  and  wife.  605. 
executors  and  administrators.  Id. 
ti'ustees.  Id. 

assignees  of  bankrupts.  Id.  606. 
when  it  must,  or  may  be  pleaded.  593,  4.  606. 
mode  of  replying  to  plea  of.  637  (/). 
notice  of,  when  and  how  given.  441.  606,  7.  623. 
form  of.  607. 
proceedings  on.  Id  608. 
particulars  of.  536. 
of  costs,  when  allowed.  See  tit.  Costs. 
SETTING  aside  Awards.  See  tit.  Arbitration. 
Executions.  935,  6. 

SETTING 


INDEX.' 

SETTING  aside  inquisitions.  524. 

Judgments  by  default.  See  tit.  Judgmerits. 

Pleas.  419. 

Proceedings, 

for  irregularity.  434.  440. 
costs  on.  See  tit.  Costs. 
difference  bet\veen  setting  aside,  and  staying 
proceedings.  435. 
SEVERAL-Plaintiffs, 

signingnote  on  lords' -act.  970. 
Defendants,  process  against.  80, 
declaring  against.  424,  5. 
making  up  issues  against.  670. 
notice  of  trial  to.  695,  6. 
costs  in  actions  against.  See  tit.  Costs. 
Counts  or  pleas,  costs  of.  See  tit.  Costs. 
Issues,  how  made  up.  666.  669,  &c. 
SHAM-PLEAS,  discountenanced.  657  (t). 
SHERIFF, 

an  officer  of  the  court.  33. 
duty  of.  Id. 

punishable  for  misbehaviour.  Id.  54. 
attornies  not  liable  to  serve  the  office  of.  265. 
his  officers.  191,  2. 
warrant.  192. 

authority  under  the  writ.  191. 
not  bound  to  take  notice  of  the  defendant's  privilege.  171,2. 

175.  183.  189  (6), 
entering  a  liberty  without  a  wo72-07«iV^a,9.  192,  3. 
his  duty  upon  an  arrest;  194. 

by  a  special  bailiff'.  253. 
under  the  stat.  43  G.  III.  c.  46.   §  2. 
200,  1,  &c. 
his  treatment  ofprisoners,  arrested  on  mesne-process:  200. 
when  to  carry  them  to  the  county-gaol.  203. 
penalty  on,  for  misbehaviour.  207. 
his  duty  upon  a  special  ca/iias  utUigatuvi.  135. 
in  what  cases  liable  for  an  escape.  207,  8. 
when  he  may  return  a  rescue.  208. 
of  ruling  him  to  return  the  writ:  252,  &c. 

in  what  cases  the  rule  cannot  be  had.  253. 
at  what  time  it  may  be  taken  oiu.  /(/.  254. 
of  the  service  of  the  rule.  254. 
when  to  make  his  return.  100.  254,  5. 
liable  to  an  attachment  for  not  makinc  it.  254. 
Vor..  11.  4  11  SUKIUl'l. 


INDEX. 

SHERIFF, 

of  county'palatine,  amenable  to  the  court  for  contempts. 

254,  5. 
his  return,  and  in  what  cases  he  is  liable  to  an  action  thereon . 

255,  6. 
to  process  by  original.  107. 

of  ruling  him  to  bring  in  the  body:  257,  8. 

at  what  time  the  rule  may  be  taken  out.  258,  9. 
liable  to  an  attachment  for  not  complying  with  it:  259, 

60,  &c. 
origin  of  this  practice.  256. 
how  far  liable  thereon.  202.  262. 
in  what  cases  relievable,  and  in  what  not.  263, 
upon  a  render.  235,  6. 
death.  263. 

putting  in  bail,  8cc.  Id. 
his  power  and  duty  under  an  execution.  924,  5. 

property  in  goods  taken  in  execution.  925. 
may  maintain  trespass  or  trover  for  them.  Id. 
time  enlarged  for  making  his  return  to  xs.Jieri-facias.  928. 
his  return  to  process  of  execution.  928,  9.  956.  993. 
not  bound  to  execute  writ  of  false-judgment,  without  being 

paid  his  fees.   1140,   1 . 
actions  against.  6.  399.  207. 
SHERIFF'S-OFFICERS,  &c.  191,  2.  200.  204. 
cannot  be  bail.  230. 
action  against,  on  the  32  Geo.  II.  c.  28.  §  12.  469,  70. 

for  money  levied  by  distress,  after  reversal 
of  outlawry.  927. 
SHIP'S-ARTICLES,  delivering  copy  of.  533,  4. 
SHORT-NOTICE  of  Trial.  See  tit.  Trials. 

Inquiry,  See  tit.  Inquiry. 
SI  TE  FECERIT  SECURUM.  See  tit.  Pone. 
SIDE-BAR  Rules.  See  tit.  Rules  and  Orders. 
SIGNING  PLEAS.  See  tit.  Pleas  and  Pleading. 
SIMILITER. 

striking  out,  and  demurring,  678, 
want  of,  amendable.  835,  6. 
SINGLE  DAMAGES.  See  tit.  Damages. 
SOLDIERS,  Arrest  of.  177. 

place  of  life-guardsman  saleable  under  the  lords*  act.  968. 
SOLVIT  AD  DIEM, 

plea  of,  must  be  dehvered.  507.  621,  2. 

need  not  be  signed.  621,  2. 
evidence  on.  20,  1. 

SOLVIT 


INDEX. 

SOLVIT  POST  DIEM, 

when  it  must  be  pleaded.  20. 
SON  ASSAULT  DEMESNE, 
must  be  pleaded.  597. 
plea  of,  need  not  be  signed  or  filed.  621,  2. 
new-assignment  on.  640,  1. 
issue  on,  by  whom  made  up.  666. 
SOUTH-SEA-HOUSE,  Books  of,  inspecting.  539. 
SPECIAL  CASE, 

what,  and  how  drawn.  808,  9. 
arguing,  and  amending.  460.  809,  10. 
costs  on.  810,  11. 
SPECIAL  CAUSES, 

when  set  down  for  argument.  459.  809,  10 
in  what  order  argued.  459,  60. 
Jury:  See  tit.  Jury. 

costs  of.  See  tit.  Costs. 
Pleas.  See  tit.  Pleas  and  Pleading. 
Verdict.  See  tit.  Verdict. 
STAMP-DUTY, 

on  articles  of  clerkship.  39.  43.  46.  49. 
rule  to  produce  deed  to  be  stamped.  440.  533. 
in  what  cases  the  court  will  set  aside  an  award,  for 
an  improper  stamp.  763. 
STANNARIES,  Error  from  Court  of,  in  Cormvall.  1059. 
STATUTE  of  LIMITATIONS.  See  tit.  Limitatirm  of  Ac- 
tions. 
STATUTES, 

of  Merton.,  (20  Hen.  III.)  c.  1 .  Damages,  Dower.  799,  800.. 
Marltberge,{52  //era.  III.)  c.     6.  Costs.  890. 

c.  13.  Essoin.  716,  17. 
c.  16.  Da?nages.  709. 
c.  23.  Ca/iias.    122. 
Westminster,  l.{3  Ed':v.l.)c.  24.  Damages.  799. 
Gloucester,  (6  Jidiu.  I.)       c.     I .  Damages    and     Co9t»i 

799.  864,  Sec. 
c.     5.  Damages.  800.  866,  7. 
.4cton-Burncl,{\  1  Rdrj.  I.)  De  Mercatoribus.  986. 
Westminstcr,\\.{\3Edw.\.)^\.2it.  1.  c.  5.  §  3.  Damages. 

800.  867. 
c.  10.  Alipearance.  35.  63. 
c.  11.  Capias.  122. 
c.  18.  Elegit.  938.  1029. 
c.  24.  Original-Writ .  9'). 
c.  25.  Damages.  799. 
c.  26.  Damages.  Id. 

STATUTES, 


INDEX. 


STATUTES, 

of  Westminster,  II.  (13  Edw.  I.)  stat.  I.e.  27.  Esaoin.7\7 . 
c.  30.  JVisi-Prms.  715.  766.  806. 
c.  31.  Billof  ExcejUions.  787. 
c.  39.  Non  omittas.  257 . 
c.  45.    Scire    Facias.    798.    990. 
1001. 
Winton,  (13  Edw.  I.)  stat.  2.  c.  1,2.  Hue  and  Cry.  116, 
Edward  1.  13.  stat.  3.  c.  1.  De  Mercatoribiis .  986. 
Edward  III.  4.  c.  7.  Ires/iass  by  Executors.  819. 

14.  stat.  1.  c.     6.  Amendment.  660.  1127. 
25.  stat.  4.  c.     3.  Forestalling.  466. 
c.  17.  Capias.  122. 
c.  19.  A7?75's  Debtors.  299. 

27.  stat.  2.  c.     9.  Statute-Staple.  986. 

28.  c.  11.  i/we  a72f/  C/-i/.  116. 

31.  c.  \2.  Error,  Exchequer.  1133. 
Il./Mn/.716. 
9.  Damages.  799. 
8.  Forcible-Entry.  891. 
2.  Ve7iue.  543. 
8.  Damages.  799, 

11.  Damage's.  800.  865.  902. 

8.  Damages.  799. 
c.  18.  Attomics,  Fenue.  35.  544. 

1.  c.     4.  Attornies,  Undersheriffs .  269. 
c.     5.  Additions.  582. 

2.  stat.  I.e.  2.  Certiorari,  Bail.  331  (^). 
9.  stat.  I.e.  4.  Atnendment.  660. 

c.     3.  Amendment.  Id. 

1.  Me7nbers  of  Convocation.  171. 

9.  Damages.  800. 

12.  Amendment.  66.  104.  660. 
15.  Amendment.  642. 

9.  5az7,  Sheriffs.  33.  132.  194.  199 
Attornies.  o5. 
Henry  Yll.  2.  c.  10.  Costs,  Error.  890.  1131. 
11.  c.  12.  Co.s?s,  Paupers.  68,  9. 
19.  c.     9.  Ca/iffls.   122. 

c.  20.  C'osCc',  ..fin-or,  891.  1131. 
//f«?'2/VIII.6.  c.    4.  Writ  oj" Proclamation.  128. 
7.  c.    3.  Limitation  of  Actions.  14. 
c.    4.  Cosrs.  190. 
21.  c.  13.  §  26.  .Yo?i-Rcsidence.  467. 

STATUTES- 


42.  c. 
Richard  II.  1.  c. 

5.  c. 

6.  e. 
Henry  IV.    I.e. 

2.  e. 
4.  e. 


Henry  V. 


Henry  VI. 


4. 

8.  c. 

c. 

c. 

e. 

23.  c. 

33.  c. 


INDEX. 


STATUTES, 

of  Henry  VIII. 


Edward  W. 

PhUifi  Sc  Marij. 
Elizabeth. 


21.  c.  19.  §  3.  Coats.  896,  7. 

23.  c.   6.  Recognisances.  952.  979.  985. 

987,  8. 
c.  15.  §  1,  2.  Costs.  413.891,2.  895, 

6. 

24.  c.    8.  Costs.  898. 

32.  c.    5.  Execution.  942.  951. 

c.  21.  TmutyTcrm,  Dies-Juridicus. 

87.  98. 
c.  30.  Jeofails.  661.  829.  833,  4,  5. 

839. 

33.  c.  39.  King's  Debt.  944.  948. 

34  8c  35.  c.  26.  §  113.     Wales,  Error. 

1059. 
35.  c.  6.  §  6,7,  8.  Tales.  771.  783. 

2  8c  3.  c.  13.  Costs,  Error.  866.  868. 

1080. 

3  Sc  4.  c.    3.  §  4.  Damages.  799. 
1  8c  2.  c.  12.  Costs.  866. 

4  8c  5.C.    7.  Talcs.  771.  783. 
5.  c.   4.  §  31.  Costs.  866. 

c.    9.  §  12.  Witnesses.  7 oS. 
c.  25.  Ta/^-s.  771. 
8.C.   2.  Declaration.  362. 
c.   12.  §  1,  2.  Costs.  896. 

13.  c.  29.  C'o«?«rt72Ce.    578. 

14.  c.   9.  Tales.  771. 

18.  c.    5.   Comfiounding  Pe7ial-Jctw?is, 
Infants,  Coats.  70.  500.  898. 
c.  14.  Original- Writ,  Jeofails.   102. 
832.834.  837,  8. 
27. c.  4.  §  7,  8.  Statutes-Merchant  and 
Stajile.  986. 
c.  5.  Deinurrer.  648. 
c.   8.  £rror.  1089,  90.  1068. 
10.  Costs.  500.  898. 
13.  Hue  and  Cry.  116.  118. 
29.  c.   4.  Poundage.  978,9. 
31.  c.  3.  §    1.  IFrit  of  Proclamation. 

128. 

§  3.  Bail  on  Outlanvry.  140. 

142. 

c.  5.  §  5.  Limitation  of  Actions.  13. 

4  3.  c.  2.  ^  19.  Damages,   Costs.    518. 

615.  903. 
STATUTES; 


INDEX. 


STATUTES, 

of  Elizabeth. 

James  I. 


Charles  I. 


Charles  II. 


43.  c.  5.  Habeas-Corfius.  338. 
C.   6.  Costs.  592.  870. 
3.  c.  7.  §  1.  Costs.  276. 

§  2.  Attornies.  35.  54. 
c.   8.    Bail   in  Error.    998.    1075. 
1080,  1,  2.  1085. 
c.  15.  §  4.  Co5/s.  871,  2.  874,5. 
4.C.   3.  Costs.  895. 
7.C.   5.  Cos/s.  903,4. 
21.  c.  4.  Penal- Actions.  46  7. 

c.  12.  §  5.  ^enwe.  374. 
■31.  c.  13.  Jeofails.  833.  836,  7,  8. 

c.  16.  ^  J.  Limitation  of  Actions.  15. 

§  6.  Cos/«.  878. 
c.  19.  §  9.  Bankrupts.  853. 
c.  23.  Habeas-Corfius.  338,9,  40. 
c.  24.  Execution,  958. 
c.  26.  §  2.  Personating  Bail.  228,  9. 
3.  c.  4.  §  4: .  Bail  in  Error .  1075. 

16,  c.  6.  Michaelmas-Term.  98. 
13.  Stat.  2.  c.  2.  §  2.  Ac-etiam.  81. 

§  3.    JVon-firos,     Costa. 
412.  897. 
§  4.  Outlawry.  132. 
§  5.  Prisoners.  303. 
§  6,  7.  Teste  and  Return 
of  Writs.  93.  722. 
956.994. 
§  9.  5a?7  in  Error.  998. 
1080. 
§  10.  Cos;*.  1134. 
16  &  17.  c.  8.    §    1,   2.    Jeofails.    833. 
835.  839,  40.   863. 
§  3.  Bailin  Error.  998, 
1081,  2. 

17.  c.  7.  Replevin,  Costs.  517.  798  (/i). 

843.  891.  911. 
c.  8.  §  1.  Judgments.  847,  8.  1024. 

1027. 
§  2.  Administrator  de  bonis  non. 
1031. 
22  &  23.  c.  4.  Bail  in  Error.   1080. 

c.  9.  Judge's  Cerf if  cate. Costs. 

753.  879,  &c. 

STATUTES, 


INDEX. 


STATUTES, 

of  Charles  II.  29.  c.  3.  §  10.  Judgments,    Cestui    que 

trust.  850.  939,  40. 

§  14,  15.   Judgments.  856,   7. 

§  16.^"xec«;/on.  850.  914,  15. 

§  \  8.  Recognisances.  989. 

c.  5.  Affidavits,  Commissioners.  155. 

455. 
c.  7.  §  6.  Sunday.  189,  90. 
William  1.  c.  27.  JFa/c*,  ^rro?-.  1059. 

&  2£c  3.  Sess.  I.e. ^5. Damages, Costs. 800. 

Mary.  3.  c.  14.  Heir  and  Ancestor.  853,  &c. 

4  Sc  5.  c.  4.  §   1,  2,  4.  ^azV.  217,   18, 

19.  229. 
c.  18.  §  3,  4,  5.  Outlawry.  132. 
140,  1. 
c.  20.  §  2,  3.  Docketing    Judg- 
ments. 857,  8,  9. 
c.  21.  Prisoners.  297 .  309. 
c.  23.  §  10.  Costs.  886. 
C.  24.§  \5.Jury.  715. 
§  18.  7a/fs.  784. 
5  8c  6.  c.  21.  §4.     Date  of  Process.  88. 
William  III.  7  &  8.  c.  24.  Oa/As,  45. 

C.  32.  §1.     Jury-Process.     718, 
19,20.832. 
§  3.  7a/f*,  771.  784. 
8  &  9,  c,  11.  §  1.  Costs     on     Acquittal, 


§  2.  Co5?« 


§ 


Costs 

Scire-Facias, 
800.     867, 


900,  1. 

on   Demurrer. 

897.    1134. 

in        Waste, 


&c. 
996. 
1048. 
§4.  Cos^s     /or         JF/z/m/ 
Tresfiass.    884.    887. 
§  6.  Scire-Facias,       Judg- 
ments.   347.    848. 
1025,  6. 
§7.      Abatement.        849. 
1027,  8. 
^8.  Damages,   Suggest io?i 
of  Breaches,   Scire- 
facias.       508,       9, 
&c.  637   (i).     800, 
1.  1012. 
STATUTES. 


INDEX. 

STATUTES, 

of  rVilliam  III.  8  &  9.  c.  27.  §  3.  Error.  1 134. 

§  6.    Escape,    Fresh-fiursuit . 
599. 
§  13.  Prisoners.  303. 
9  &  10.  c.  15.  §  1,  2.  Arbitration.    744,    5. 

763,  4. 
c.  25.  §  42.  Da^e  of  Process.  88. 
10  &  ll.c.  14.  Limitation, Error.  1064. 
11&12.C.9.    §  1.  Co57s.  870.  879. 

§2.y/rrfs;     m     Wales,     and 
Co  iintieS'Palatine .       150. 
12  &  13.  c.  2.    Jiiiiges.  29. 

c.  3.    Peers   and   Members   of  the 
House  of  Commons .  25. 
110,  11. 
13.C.     6.  §  3.    Oaths.  45. 
Anne.  I.e.     6.  EscaJie-lVarrant.  960. 

4.  c.  16.  §  1.    Demurrer.  649,  50. 
§2.  Jeofails.  838.  863. 
§3.  Warrant  of  Attorney .  65. 
§4,    5,    7.    Double-Pleas,     Costs. 
608,  9.  615,  16. 
§6.  Venire-Facias,  715. 
§8.  r?>w.  730,  1,  2. 
§  1 1.  Dilatory  Pleas.  587. 
§  12.  Payment.  1046. 
§  13.  Bringing  Money  into  Court. 
,484.  511. 
§  17,    19.    Limitation    of  Actions. 

17. 
§  20.  Bcdl-Bond.  245,  6. 
.    v  ^  §25.  Cos^s.  1095. 

§  27.  Account.  2. 
•  5.  c.  18.  §4,  6.     Registering      Judgments, 

£cc.  862.  990. 

6.  c.  26.  §  12.  Scotland,  Error.   1063. 

c.  35.  §  19.  Registeriiig  Judgments,    Sec. 

862.  990. 

7.  c.  \2.  Ambassadors.  167,  8,  9. 

c.  20.  §  18.  Registering  Judgments,    8cc. 

862.990. 

8.  c.   9.  §32,  o7.Sfa7n/i-Duty.  39. 
c.  14.  §  1.  Execution.  925,  6. 

9.C.  \A:.  Gaming.  14.  535.  559.  581. 

C.20.  Mandamus,  Quo  Warranto.  838,  9, 
12.  Stat.  2.  c.  16.  Costs.  866. 

STATUTES, 


INDEX. 

STATUTES, 

of  George  I.       1.  stat.  2  c.  5.  Riot-Jet.  116.  119, 

3.  c.  15.  §  16,  17.  Poundage.  979,  80. 
5.  c.  13.  Jeofails.  833.  1094. 

8.  c.  25.  §1,2.  Recognisances.  988. 

§  3.  Poundage.  979. 
§  4.  Recognisances.  952. 
B.  c.  25.  §  6.  Judgments.  857. 

9.  c.  22.  Black-Jet.  116,  17.  119.  284. 

12.  c.  13.  §  9,\O.Jttornei/,  Prisoner.  269,70. 

c.  29.  §  1,2.  Process,  Jrrest,  Bail.    144, 

5,  147,3.  150.211,  12.  214.  342. 

§  3.  Habea.^  Corjius,  340. 

§  4.  Jttornies.  60. 

Oeor^c  II.      1.  c.  14.  §  \5.Jrreat  of  Seamen.  176,7,  8,9. 

2.  c.  22.  §  13.  Set-off.  602. 

c.  23.  §  5,  6,  10,  13,    15,  18,  20,  22,  23, 
24.  Jttornies.  36,  7.  40.  45,  6.  52,  3, 

4.  272. 
§  23.  Cos/«.  276,  7.  283,  4. 
C.  24.  Briberxj.  468. 

c.  36.  §  8.  Shiji's  articles,  Seamen' avjagea. 

534. 

3.  c.  25.  §  8,  11,  18,  19.  Jur!/.    715.    722. 

724.  781,  3. 
§  14.  Viezv.  731. 
§  15.  Special -Jury.  727. 

4.  c.  26.  Jeofails.  839. 

c.  28.  §  4.  Ejectment  for  Kon-payment  of 
Rent.  486,  7, 

5.  c.   18.  §  2.  Jttornies,  Justices.  269. 

c.  27.  §  1,  2,  3,  4.  Process,  Jrrest,  Bail. 

144.   213,    14. 

c.  30.  §  5,  7,  9,  13,  23.  Bankrupts.  179, 

80,  1.  1013.  511. 

6.  c.  27.  §  2.  Jttornies.  52. 

7.  c.    8.  Stock-Jobbing.  707. 

c.  20.  §  1.      Ejectment    by    Mortgagee. 

487,  8, 

8.  c;    6.  §  1,  \8 . Registering  Judgments,&cc. 

862. 990. 
c.  16.  §  4.  Hundredors.  1  17,  18. 
c.  24.  §  4,  5.  Sett-off.  602,  3.  606. 
11.   c.  19.  §  l4.Jctionfor  Use  and  Occupa- 
tion.  607. 

STATUTES, 
Vol.  I|.  4  I 


INDEX. 

3TATUTES,- 

ci  George  II.      il.c.  19.  §  21,  22.  Cos^s.  891.  903. 
c.  22.  §  Hundredors.  117. 
12.  c.  13.  §  3,  4,  5,  7,   8.  jittomies.  36,   7, 

45.  90.  280. 
c.  28.  §  1.  Gaming-House.  468. 
14.  c.  10.  Costs.  872.  875. 

c.  17.  §  1,  2,  3.  Judgment  as  in  Case  of 
JVbnsuit.  449. 
§  4,  5.  Notice  oj"  Trial  and  Coun- 
termand. 519.  695.  697,  8. 

18.  c.  34.  §  1.  Gaming-House.  468. 

19.  c.  37.  §  6.  Policies  of  Jssurancc.  532. 

§  7.  Bringing  Money  into  Cour: 

563 

20.  c  24.  §  6.  Prize-Money.  470. 

c.  37.  §  2.  Rule  toretum  Writs.  253,  4 
■22.  c  24.  Hundredors.  1 17. 

c.  46.  §  2.  to  §   15.  Attomies.,  Sessions ^ 
Clerk  of  the  Peace.  36, 
7,  8,  9.  41,  2,  3,  4. 
52.  54.  269 
§  34.  Execution  against  Hundre- 
dors. 119,  20. 
c.  47.  Costs.  874. 

23.  c.  27.  Court  of  Conscience^   Costs.  466. 

874. 
c.  30.  Costs.  874. 
c.  33.  Costs.  Id. 

24.  c.  18.  §  1,  2.  Jury.  715.  728. 

c.  42.  Attomies,  Costs.  265.  874. 
c.  44.  §  1.  Xotice  of  Action.  72,  3. 

§  4.  Bringing  Money  into  Court. 

564,5 

§  6.  Demand  of  Copy  of  Warrant 

74. 
c.  48.  Michaelmas-Term.  98. 

25.  c.  36.  Disorderly  Houses.  501.  535. 
27.  c.  17.  Marshal.  32. 

29.  c.    4.  §  14.  Arrest  of  Soldiers.  179. 

30.  c.    3.  §  87.  Attorney^  Commissioner  of 

Land-Tax.  269. 
c.     8.  §  20.  Arre.'it  of  Soldiers.  179. 
c.  19.  §  75.  Attorniesy  Costs.  36.  276- 
32.  c.     6.  Costs.  874. 

STATUTES, 


INDEX. 

STATUTES, 

of  George  II.     32.  c.  28.  §  1,  2,  4,  1 1,  12.  Sheriff' s-Ofiicen:. 

200,  1,  2.  201.,  5,  6,  7.  469. 

§  13,  14,   15,  16,  17.  Execution, 

Prisoners.  962,  &c.  972,  Sec. 

1016. 

c.  58.  Quo  Warranto.,  Pleading  double. 

611. 
George  III.    I.  c.  23.  Judges.  29. 

2,  c.  19.  §  5.  Costs.  903. 
9.  c.  29.  Demolishing  Mills,  &cc.  1 17. 
10.  c.  50.  Distringas, Issues.   108.  261. 
13.  c.  51.  §  1,  2.  Wales.  85.  272.551. 

c.  63.  §  44.       East-Indies,     Mandamus. 

741,  2. 
c.  78.  §  79.  Highway -Jet,  Bringing  mo- 
ney into  Court.  564  (y). 
c.  84.  §  81.   Turn}iike-Act^,Bringing  mo- 
ney  into  Court.  Id. 

16.  c.  34.  hisuring  Lottery-Tickets.  469. 

17.  c  26.  .Annuities.  445.  983. 

19.  c.  68.  §  24.  Attornies,     Court     of    Con- 
science. 265. 
c.  70.  Inferior-Courts,  Arrest,  Bail,  Ha- 
bcas-Cor/ius,   Execution,  Error. 
144.  332.  340,  1,  2,3.  998. 
1009.  1075.  1140. 

23.  c.  28.  §  2.  Ireland,  Error.  1063. 

c.  70.  §  30,  33,  34.  Excise-Officers,  A'o- 

tice  of  Action,  Venue,  Bringing 

Money  into  Court.  Costs.  73, 

4.  374.  564.  903. 

24.  Sess.  2.  c.  47.  §  35.  Custom-House  Offi- 

cers, Venue,  Bringing  Money 

into    Court,    Costs.    73.    374. 

564.   903. 

25.  c.    80.    §    1,   5,    7,   8,    9.   Certifcatcs  of 

Attornies.  49.  51. 
§  13,  Sec.  Memorandum  of  War- 
rant. 6-6,  7.  216. 

26.  c.  44.  Execution,  Prisoners.  962.  972. 
C.  77.  §  13.   Customs  arid  Excise.  468. 

28.  c.  37.  §  23.  Customs  and  Excise,  Limi- 
tation of  Actions.  22. 
'M.  c.  32.  §  22.  Romari  Catholics.  45. 
32.  c.  33.  §  22.  Arrest  of  Seamen.  176.  179. 

STATUTES, 


INDEX. 

STATUTES, 

oi  George  III.  33.  c.    5.  §  4,  5.  Execution^  Pri&oiiers.  962, 

4,  5.  968.  972. 
c.  68.  Execution.  1009. 
34.  c.  14.  §  1.  to  §  8.  Stawp-Duty.  39,  40.  43, 

4,  5.52. 
c.  58.  Execution.  1139,40. 
c.  69.  Insolvent-Debtors.  486.  962.  978. 

1016. 

36.  c.     9.  Ihmdredors.  117. 
C.104.  §  38.  Lotteries.  468,  9, 

37.  c.  33.  §  63.  Arrest  of  Soldiers.  177,  8. 
c.  45.  §  9.  Bank-Jet.  161. 

c.  85.  §  3,4.  Prisoners^  Allowance.  969. 
c.  90.  §   26,    &c.     Attornies-Certificates, 

iP'c.  51.50. 
c.  91.  §  8.  Bank-Act.  161. 
c.  93.  Attornies'   Certifcates,   Indemnity. 

52. 
c.  112.  Insolvent -Act.  962. 

38.  c.       1.  §  8.  Bank-Act.  161. 

c.  52.  §  I.  County-Palatine,  Trial.  673,  4. 

39.  c.  50.  Lords'-Act.  962. 

39  Sc  40.  c.  67.  art.  4.  Peers,  Privilege  from 

Arrest.  170, 
c.  72.  Attornies' Certificates, Indemnity. 52. 
c.  104.  §  \0.  Attornies,  Court  of  Requests. 

265.  873. 
•21.  c.  24.  Demolishing  Mills,  8cc.  117. 

c.  70.  Insolvent  Act.  962  (^). 
43.  c.  18.  Bank-act.  164. 

c.  46.  §  1.  Arrest,  Costs.  187. 

§  2.  Arrest.,   Bail,  CostSj  Deftosit^ 
Motions,     Sheriff.    200,     Sec. 
§  3.  Arrest,  Costs,  Execution,  Mo- 
tions. 440.442. 
§  4.  Costs,  Motions.  442.  879. 
§  5.  Execution,  Poundage.  911. 
§  6.  Bail,  Supersedeas  233. 
STATUTES-Merchant.  985,  6. 

Staple:   945.  986,7. 

recognisances  in  nature  of.  987,  8. 
from  what  time  they  bind  the  land ; 
at  common-law.  989. 
by  the  statute  of  frauds.  Id. 
Tjegistering  in  Middlesex  and  Yorkshire.  862.9J)fr. 

STAYING 


INDEX. 

STAYING  PROCEEDINGS, 

motion  and  rule  for,  when  and  how  made  440,  1.  454. 

OQ  the  last  day  of  term.  452. 
in  actions  on  bail-bonds.  138,  9.  440,  1.  452. 
attornies'  bills,  in  C.  P.  286  (c). 
where  the  debt  sued  for  is  under  40s.  440,  1.  465. 
in  penal-actions.  466,  7. 

actions  brought  contrary  to  good  faith.  470. 
without  proper  authority.  Id. 
pending  writ  of  error.  470,  &:c. 
till  security  be  given  for  costs.  476,  7,  8cc. 

payment  of  costs  of  former  action.  479,  80. 
on  payment  of  debt  and  costs:  480,  1. 
in  assumpsit,  on  bill  of  exchange.  482. 
penal-actions.  Id.  483. 
debt  on  bond;  484,  &c. 

for  performance  of  covenants.  482. 
payment  of  money.  Id.  484. 

an  annuity,  or  money  by 
instalments.  485. 
recognisance.  483.  996. 
ejectment,  for  non-payment  of  rent.  486,  7. 

by  mortgagee.  487,  8. 
actions  for  general  damages.  488,  9. 
of  replevin.  Id. 
trover.  489,  90. 
difference  between  setting  aside,  and  staying  proceedings. 

435. 
STIPULATED  DAMAGES,  Arrest  for.  159. 
STOCK-JOBBING-ACT, 

cannot  be  pleaded  with  non  assumpsit.  609  (;). 
STRIKING  out  COUNTS.  See  tit.  Sufierfmus  Counts. 

Special-pleadings,  and  giving  general-issue. 
See  tit.  Issues  and  Trials . 
Similiter,  and  demurring.  See  same  titles. 
SUBMISSION  to  Arbitration.  See  tit.  .Arbitration. 
SUBPOENA;  See  tit.  IVitnesscs. 
in  the  exchequer.  62  (a), 
on  a  writ  of  inquiry.  522. 

attachment  for  disobeying:  722,  3.  437.  738,9. 
should  be  moved  for  as  soon  as  possible.  738,  9. 
SUGGESTIONS,  for  costs.  See  tit.  Costs. 

on  the  Stat.  13  Geo.  III.  c.  51.  §  1,2.  272.  551. 
of  breaches,  on  the  stat.  8  Sc  9   JV.  III.  c.  II.  §  8.  508,  v, 

&C.  1012. 
when  necessary.  511.- 
practice  on.  512. 

SUGGES- 


INDEX. 

SUGGESTIONS, 

for  awarding  -y^MzV*?  out  of  common  course.  549.  552.  673, 
of  deaths,  &c.  675.  849.  1028.  4,  5. 

SUMMONS, 

on  scire  facias.  1037. 
SUMMONS  and  ORDER, 
practice  by.  463,  4. 
for  time  to  plead,  &c.  426,  7. 
further  time.  430. 
taxing  bill  of  costs.  285,  6, 
service  of.  47,  8. 
attendance  on.  57. 
how  far  a  stay  of  proceedings.  427. 
SUMMONS  and  SEVERANCE.  1054,5.  1109. 
SUNDAY, 

how  it  affects  the  beginning  or  ending  of  terms.  98,  9. 
return -clays  on.  100. 

executing  process  on.  189,  &C.  193.  438.  190. 
when  accounted  a  day  inlegal  proceedings.  431.520.625,6. 
■when  not.  433.  813. 
inquiry  cannot  be  executed  on.  521. 
SUPERFLUOUS  COUNTS, 

or  matter,  striking  out.  441.  558,  9,  60. 
SUPERSEDEAS, 

when  granted  to  a  certiorari.  335. 
arrest  after.  1  86,  7. 
upon  outlawry.  130.  132.  139.  143. 
to  the  sheriff,  5cc.  323.  Sec 

on  justifying  bail  in  vacation,  '^oo. 
cannot  be  pleaded  to  an  action  on  judgment.  328. 
of  execution.  See  tit.  £rror. 
SURPLUSAGE.  405.  619.  827,  8. 
SUR-REBUTTERS.  See  tit.  Pleas  and  Pleading. 
SUR-REJOINDERS.  See  same  title. 
SURRENDER, 

in  discharge  of  bail.  See  tit.  Bail  and  Prisoners. 
SURVIVORSHIP, 

scire  facias  when  necessary  on.  1027,  &c. 
SWEARING  JURY.  See  tit.  Jury. 

T. 

■« 

TALES.  See  tit.  Jury. 
TAXATION;  See  tit.  Cosfs. 
costs  of.  280.  286. 

TENANTS 


INDEX. 

TENANTS  in  Common.  2.  580. 
TENDER, 

in  bank-notes,  negativing  in  affidavit  to  hold  to  bail.   161. 

164. 
when  it  may  be  made.  293,  4.  569. 
must  be  pleaded  in  assumpsit.  593. 

debt  on  simple  contract.  594. 
bond.  596. 
in  what  time  it  must  be  pleaded.  418,  19. 
cannot  be  pleaded  with  non-assumfisit,  or  non  est/ac'wn,  to 

the  whole  declaration.  609. 
mode  of  concluding  plea  of.  62 1 . 
paying  money  into  court  on:  566. 

judgment  may  be  signed  forwantof.  507.  566. 
taking  money  out  of  court  on.  566.  . 

TENOR  of  Record,  certifying.  689.  69  1,  2, 
TERM, 

what  may  be  moved  on  the  last  day  of.  452,  3. 
TERMS  and  RETURNS;  97,  &c. 

issuable.  99. 
TERMS  for  YEARS;  See  tit.  Leases. 

may  be  extended  or  sold  on  elegit.  940, 
TERMS-NOTICE.  See  tit.  Triala  and  Imjuinf. 
fERTENANTS, 
what.  1032  (rf). 
scire  facias  against;  1034. 
in  ejectment.  1003  («), 
error,  to  reverse  a  fine  or  recovery.  1034. 
TESTATUM  WRITS.  See  Ca.  sa.  Fieri  facias,  and  Pracess. 
rESTE  and  RETURN, 

of  bill  of  Middlesex  or  latitat,  Sec  84,  &c. 
original  writ.  97.  100,  1,  2.  275,  6. 
process  by  origmal:  100.  124. 

against  peers,  &c.  113. 
bill  against  peers,  Sec.  115. 
writ  o£  exigi  facias.  128. 

proclamation. /J.  129. 
jury -process.  721,  2. 
fieri  facias.  913,  14. 
alias  and  filnries,  &c.  931. 
extent  for  the  king's  debt.  946,  Sec 
caf lias  ad  satisfaciendum:  955,  6. 

to  charge  bail.  994. 
scire  facias.  1036.  1039,  40.  1101,  2. 
writ  of  error.  1064.  106*^ 
'■^rtiorari.  1 1  10,  1 !. 

TIME 


INDEX. 

TIP«1E  for  Pieading.  See  tit.  Pleas  and  Pleading. 
TITLE, 

of  affidavits.  155,  6.  450,  1. 
declaration;  366,  &c. 

in  scire  facias.    1042. 
issue.  667.  672. 
when  necessary  to  be  specially  shewn  in  pleading.  ^3,  4. 

398,9 
how  set  forth.  394,  5. 

may  be  given  in  evidence  under  the  general  issue  in  tres- 
pass. 597. 
defectively  set  forth,  aided  by  verdict.  826.  7. 
aliter  of  a  defective  title.  Id. 
TOLL,  disturbance  of.  396  {g). 
TORTS.  5,  6,  7.  151.  805  (v).  and  see  tit.  Wrongs. 
TRANSCRIPT,  1088,  &c. 

in  what  cases  amendable.  663,  4. 
money.  1091. 

diminution  contrary  to,  not  allowed.  1 104  (rf). 
TRAVERSE.  See  tit.  Pleas  and  Pleading. 
TREBLE  COSTS.  See  tit.  Costs. 
TRESPASS, 

action  of;  7.  10,  11.  151.  374. 
limitation  of.   15. 

declaration  in,  to  personal  property.  397,  8. 
staying  proceedings  in.  489. 
will  not  lie  against  sheriff,  for  selling  goods  after  bank- 
ruptcy. 923. 
maintainable  by  sheriff,  for  goods  taken  in  execution.  925. 
declaration  in.  376.  390,  1.  414. 
pleas  in;  597, 

when  to  be  delivered.  622. 
issues  in,  on  son  assault,  by  whom  made  up.  666. 
verdict  in,  on  several  counts.  803. 
judgment  in.  842. 

daniages  in,  when  some  defendants  are  acquitted.  803,  4. 
costs  in;  See  tit.  Costs. 

on  double  pleading.  6 1 3  ,Scc. 
execution  in.  911. 
TRIALS,  by  the  Record.  See  tit.  J\''ul-tiei-record, 
country, 

at  bar;  766. 
history  of.  Id. 

injwhat  cases  granted,  and  in  what  not. 
Id.  767,  8cc. 
in  London.  769, 

TRIALS, 


INDEX. 

TRIALS,  by  the  country, 
at  bar; 
in  a  county-palatine.  769. 
motion  for,  when  made.  439.  442.  769. 
notice  of.  770. 
entering  cause.  Id. 
jury,  special:  771. 

of  what  county.  Id.  (Ji). 
notice  to.  Id. 
process:  Id. 
tales.  Id. 
new  trial  after.  Id.  816. 
costs  of.  See  tit.  Costa. 
at  nisi  firius;  7&6.  772. 

in  what  county:  673,  4.  772. 

where  an  impartial  trial  cannot  be  had.  439. 
442.  548,  9.  673.  772. 
where  the  \enue  is  laid  in  the  county  of  a 
city  or  town-corporate.  673,  4, 
notice  of;  693. 
where  given,  55. 
to  whom.  Id.  693. 
in  what  manner:  694. 

where  there  are  several  defendants,  &c. 
time  allowed  for;  Id. 

in  London  and  Middlesex.  695,  6. 

country  causes.  695. 
where  defendant  changes  his  residence. 

694. 
on  an  old  issue:  696. 

terms-notice.  Id. 
on  paper-book,  when  it  shall  serve  for  the 
general-issue.  693,  4. 
notice  of  inquiry.  Id. 
short-notice.  428,  9.  697. 
countermand.  55.  697,  8. 
continuance.  698. 
new  notice,  when  necessary.  699. 
costs  for  not  proceeding  to.  441.  699. 
by  firoviso; 

when  it  may  be  had: 
in  civil  cases.  700. 
criminal  cases,  /d.  70 1 . 
inilefor.  701,  2. 

TRIALS, 
Vol,  II.  4  K         . 


^  INDEX. 

TRIALS,  by  the  country, 

at  nisi  firius; 

by  proviso; 

notice  of.  702. 
jury -process.  72 1 . 
in  error.  1 122. 
putting  off,  for  the  absence  of  witness;  708,  9, 
motion  for,  when  made.  441.  708,  9. 
affidavit.  708,  9. 
other  causes  of.  710.  740. 
when  it  cannot  be  put  off.  710. 
entering  cause  for ; 

in  London  and  Middlesex.  772, 3. 
at  the  assizes.  Id. 
order  of.  Id. 

effect  of  saving  point  at.  818. 
remanets.  773,  4. 
special-jury  causes:  774. 

cannot  be  tried  in  term.  730. 
of  issues  of  fact  in  error.  1 122. 
TRIERS.  780,  1. 
TROVER, 

action  of;  6.  10.  398. 
limitation  of.  15. 
declaration  in.  398. 
arrest  in.  150,  1.  160. 
staying  proceedings  in.  489,  90. 
pleas  in.  598. 
evidence  in.  736. 
costs  in.  See  tit.  Costs. 

maintainable  by  sheriff,  for  goods  taken  in  execution.  925. 
against  sheriff,  for  selling  goods  after  notice 
of  act  of  bankruptcy.  923. 
TRUSTEES, 

set-off  in  actions  by  or  against.  605. 

not  personally  liable  on  submission  to  arbitration.  759  (i). 
judgments  and  executions  affecting,  or  not.  850.  923. 
TURNPIKE-ACTS, 

bringing  money  into  court  under.  564  (/). 

VARIANCE, 


INDEX. 

V. 

VARIANCE, 

of  writ  from  plaint,  no  objection  to  removal  of  cause  by 

fione  or  recordari,  8cc.  358. 
declaration  from  process,  when  material  and  when  not. 

242  (/O.  375,  &c.  403,  4. 
writ  of  error  from  the  record:  1057. 

in  what  cases  amendable.  1094,  5. 
plea  in  abatement  of.  404.  581,  2. 
VENDITIONI  EXPONAS.  130.  934. 
VENIRE  FACIAS;  See  tit.  Jury-firocess. 

ad  resfiondendum^  in  the  exchequer.  62  (a). 
triandum; 

award  of.  See  tit.  Issue, 
denovo:  718.  791.  794.  802,  807.  814. 

in  what  cases  grantable.  829,  30,  1,  2, 
tarn  ad  (riandum,  guarn  ad  inquirendum .  670.  802,  3. 
VENUE, 

local  or  transitory.  369. 

with  regard  to  matters  arising  abroad.  370.  372. 

in  an  action  upon  a  lease  for  rent,  &c.  372,  3. 

in  what  actions  it  must  be  laid  in  a  particular  county.  575, 4 . 

in  actions  by  or  against  attornies,  &c.  264.  550. 

original.  375. 
in  the  margin,  will  help  but  not  hurt.  Id. 
when  necessary  to  be  alleged  in  pleading.  372  (r).  581. 

1021.  1121. 
defect  of,  when  aided.  834,  5. 
on  the  removal  of  a  cause  by  habeas  cor/ius.  35  1. 
in  scire  facias.  1035. 
history  of  changing.  543. 
in  what  cases  it  may  be  changed; 
by  plaintiff.  545.  652  (uj. 
defendant: 

generally.  545. 

on  a  special  ground.  548,  9.  548. 
where  an  impartial  trial  cannot  be  had.  Id. 
by  consent.  549.  551. 
into  a  county-palatine.  551,  2. 
in  what  cases  it  cannot  be  changed; 

where  the  cause  of  action  arises  out  of  the  realm.  546. 

in  two  counties.  Id. 
in  debt  on  bond,  or  other  specialty.  Id.  547. 
award.  546  (a). 

VENUE, 


INDEX. 

VENUE, 

in  what  cases  it  cannot  be  changed; 

in  action  on  promissory  note  or  bill  of  exchange.  547. 
for  scajidalum  magnatum.  Id. 
libel.  Id.  but  see  548. 
escape  or  false-return.  548. 
infringing  a  patent.  Id. 
against  a  carrier  or  lighterman.  Id. 
where  an  innpartial  trial  cannot  be  had.  549. 
by  reason  of  the  plaintiff's  privilege.  550, 
into  a  northern  county,  &c.  549,  50. 

Wales  or  Berwick  upon  Tweed.  551,  2. 
the  next  English,  or  an  adjoining  county.  Id, 
motion  for  changing;  441.  552. 
when  made.  552,  3. 
affidavit  in  support  of.  553. 
bringing  back; 

grounds  of.  553,  4. 

undertaking  to  give  material  evidence.  554,  5. 
'  motion  for,  when  made.  438.  555,  6. 

when  laid  in  the  county  of  a  city  or  town-corporate.  673,4- 
VERDICTS, 
general.  798. 
special;  806,  &c. 
origin  of.  806, 
how  drawn.  807. 

moving  for  judgment,  and  arguing.  808. 
motion  to  set  aside.  439.  442. 
void,  and  set  aside,  on  what  grounds.  837,  8. 
amendment  of,  661,  2.  807. 
in  trespass,  on  several  counts.  803. 
contrary  or  concurring,  new  trials  after.  816, 
to  stand  as  a  security,  on  a  new  ti'ial  for  excessive  dama* 

ges.  819, 
what  defects  are  aided  by,  at  common  law,  405,  6,  826,  Sec. 
will  aid  a  title  defectively  set  out,  but  not  a  defective  title- 

826,7, 
death  of  parties  after,  when  aided.  847,  8, 
VIEW;  See  tit.  Jury. 

full  costs  after.  883. 
VOIRE-DIRE.  78  L 


UMPIRE. 


INDEX. 
U. 

UMPIRE.  750. 
UNDER-SHERIFF, 

his  duty.  200,  &c. 
cannot  act  as  an  attorney.  269. 
punishable  for  misbehaviour.  33,  4. 
UNDERTAKING, 
to  appear.  213  (u). 

pay  money,  on  compounding  ^.qui-tam  action.  502. 
debt  of  third  person,  delivering  copy  of.  532,  3. 
give  material  evidence.  554,  5. 

proceed  to  trial  peremptorily.  See  tit.  Judgment  as  in 

Case  of  JVonsuit. 
pay  costs  on  taxation.  285. 
UNDERWRITERS.  See  tit.  Policy  of  Insurance. 
UNICA  TAXATIO.  670,  1. 
UNIVERSITIES.  575,  &c. 
USURY, 

will  avoid  warrant  of  attorney.  491. 

statute  of,  when  pleaded  or  given  in  evidence.  591.  596. 

W. 

WAIVER  of  Irregularity.  See  tit.  Irregularity. 

Women.  126.  131. 
WAIVING  or  Withdrawing  general-issue.  See  tit.  Demurrers, 

and  Pleas  and  Pleading. 
Judgments  by  default.  See  tit.  Judgments. 
WALES, 

process  into.  85. 
arrest  in.  150. 
venue.  272.441  {t). 
changing  venue  to.  551. 
pleading  to  the  jurisdiction.  573. 
award  of  jury-process.  674. 
trial.  771,2. 
judgments.  856  (t/). 
costs.  870.  879. 
execution.  332,  3.  929. 
error  from:  1059. 
bail  in.  1075. 
alleging  diminution  in.  1 104. 

WARRANT, 


INDEX. 

WARRANT,  to  arrest.  88.  90.  192. 
of  Attorney,  to  prosecute  or  defend; 
in  writing  or  by  parol.  64. 
how  long  it  continues  in  force.  Id. 
of  filing  and  entering  it.  65. 
memorandum  or  minute  of.  66,  7.  81.  216. 
need  not  be  paid  for,  on  delivering  declaj'ation.  406  {b). 
new  one  required  in  scire  facias.  982,  3. 
entry  of,  on  issue-roll.  681. 
want  of,  aided  after  verdict.  833.  1119. 
certiorari  for;  1110.  1114,  15. 
how  directed.  1110  (u). 
proceedings  thereon.  1111,  12. 
to  claim  Conusance.  577. 
confess  Judgment; 
what.  490,  1. 

defeazance  must  be  written  on.  491. 
in  what  cases  court  will  order  it  to  be  delivered  up.  49 1 , 

2. 
given  by  an  infant.  Id. 

executor.  Id.  498. 
feme-covert.  492. 
prisoner:  Id. 

in  what  cases  an  attorney's  presence  is 
necessary.  Id.  493,  8cc. 
not  revocable  by  the  party.  495. 
countermanded  by  death.  Id. 
when  revoked  by  marriage.  496,  7. 
must  be  strictly  pursued.  497. 

left  with  the  clerk  of  the  dockets,  on  signing 

judgment.  500. 

'  judgment  on,  when  and  how  entered.  438,  9.  497,  8. 

not  within  the  statute  8  &  9  W.  III.  c.  1 1.  §  8.  51 1. 

against  an  insolvent-debtor.  1016,  17. 

motion  for,  when  necessary,  and  how  made.  438,  9. 

498,  9. 
at  what  tirae  the  defendant  should  appear  to  have 

been  alive.  499. 
to  acknowledge  satisfaction.  981. 
for  writ  of  error  in  parliament.  1065. 
WASTE,  Damages  in.  800. 

Costs  in.  See  tit.  Costs. 
WAY,  right  of,  how  stated  in  pleading.  396  {§). 
action  for  not  repairing.  398,  9. 

WITH- 


INDEX. 

WITHDRAWING  JUROR;  See  tit.  Jury. 

costs  on,  after  paying  money  into  court. 

570, 
Pleas;   See  tit.  Pleas  and  Pleading. 
on  confessing  action.  504. 
WITNESSES, 

privilege  of,  from  arrest.  174,  5. 

not  privileged,  when  attending  commissioners  of  bankrupt. 

175. 
on  execution  of  inquiry.  135. 

absence  of,  good  cause  against  judgment  as  in  case  of  non- 
suit. 706. 
expences  of.  737. 
how  sworn  on  arbitration.  749. 
must  not  be  interested  in  event  of  suit.  735. 
objections  to  creditor  competency  of.  Id.  818. 
mode  of  procuring  their  attendance; 
by  subfiocna  ad  testificandum:  735. 
on  trial.  735,  8cc. 
inquiry.  522. 
what,  and  how  many  may  be  put  in  one  writ.  735- 
resealing  and  serving.  Id. 
with  a  duces  tecum.  Id.  736. 

difference   between,  and   notice    to   produce 

deeds,  &c.  736  (o). 

what  must  be  produced  on.  Id.  («). 

service  of  sub/ioena  ticket,  and  payment  of  expences. 

hy  habeas  corfius  ad  testificandum:  739.  737. 

when  it  lies,  or  not.  Id. 

mode  of  obtaining  and  executing  the  writ.  Id. 
proceedings  against,  for  not  attending;  738. 
by  attachment :  Id, 

against  attorney  or  peer.  Id. 
affidavit  for.  /(/. 
by  special  action  on  the  case.  Id. 
action  on  5  KHz.  c.  9.  §  12.  Id. 
•when  and  how  examined  on  interrogatories;  440.  442. 

740. 
before  judge  in  town.  740,  1. 

commissioners  in  the  country,  or  abroad.  Id. 
rule  or  order  for  examining  them ; 
when  and  how  obtained.  740. 
can  only  be  by  consent.  Id. 
proceedings  thereon.  /(/.  741. 

WORDS, 


INDEX,  ! 

WORDS, 

action  for;  5.  i 

limitation  of.  15.  [ 

declaration  in.  392,  3.  400.  | 

pleas  in.  598,  9.  i 

verdict  and  judgment  in.  1 18. 
arrest  of  judgment  in.  831  (x*). 
costs  in.  See  tit.  Costs. 
WRIT, 

return  and  entry  of,  to  avoid  statute  of  limitations.  91,  2.  I 

not  to  be  sealed  in  blank.  33  (;).  | 

motion  to  quash.  440. 

pleas  in  abatement  to.  See  tit.  Pleus  and  Pleading. 
of  inquiry.  See  tit.  Inquiry. 
for  sealing  bill  of  exceptions.  790. 
to  confess  or  deny  seal.  79 1 . 

de  executionejiidicii.  1091-  , 

WRONGS,  I 

actions  for;  5.  j 

by  and  against  whom  brought.  8,  9. 

limitation  of.  15. 

immediate  or  consequential.  390,  1,  2. 
how  stated  in  declaration.  See  tit.  Declaration. 

Y. 

YEAR,  for  scire-faciaSf  how  computed.  1003. 


THE  END. 


I 


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